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COURT OF APPEALS
DECISION
DATED AND RELEASED
JUNE 11, 1996
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 95-2337
STATE
OF WISCONSIN IN
COURT OF APPEALS
THOMAS CALAWAY, and
SANDRA CALAWAY,
Plaintiffs-Appellants-Cross
Respondents,
v.
BROWN COUNTY,
a municipal corporation
of the State of Wisconsin,
Defendant-Respondent-Cross
Appellant.
APPEAL and CROSS-APPEAL
from a judgment and an order of the circuit court for Brown County: RICHARD G. GREENWOOD, Judge. Affirmed in part; reversed in part and
cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Thomas and Sandra Calaway appeal a judgment
awarding Brown County $11,844.85, the difference between the jury's verdict in
the Calaways' condemnation case and the basic award they received from the
County before trial. They also appeal
an order denying their motion for a new trial.
The Calaways argue the trial court erroneously exercised its discretion
when it (1) excluded evidence of a comparable sale; (2) excluded evidence
relating to market events that took place after the day of taking; and (3)
allowed the State's real estate appraisal expert to testify. The County cross-appeals, arguing (1) it is
entitled to costs and disbursements; (2) it should have received twelve percent
rather than five percent postjudgment interest; and (3) it should be reimbursed
for an undisclosed special assessment on the condemned property.
We conclude the trial
court reasonably exercised its discretion when it excluded and admitted
evidence at trial and, therefore, the Calaways are not entitled to a new
trial. However, we reverse the trial
court's decision to deny the County twelve percent postjudgment interest and
reimbursement for the special assessment it paid. We also reverse the trial court's denial of costs because it did
not articulate the reasons for its exercise of discretion. We remand the case with directions that the
trial court order the Calaways to reimburse the County for the special
assessment and articulate the reasons for its exercise of discretion on the
issue of whether to award costs to the County.
I. BACKGROUND
The background facts are
undisputed; we will recite additional facts as necessary. The Calaways owned 130.1 acres of relatively
flat, nearly vacant land. In 1990 the
County exercised its eminent domain power to acquire 72.3 acres of the
Calaways' real estate in accordance with the title acquisition procedure set
forth in § 32.05, Stats., to
expand the Austin Straubel Airport. The
County gave the Calaways a basic award of $460,000. The Calaways appealed the basic award to a county condemnation
commission. Although the commission's
decision is not in the record, it appears the Calaways were dissatisfied with
the commission's award because they appealed to the circuit court and a trial
ensued.
The jury determined that
the difference between the before-taking value and the after-taking value was
$448,155.15. The trial court denied the
Calaways' motions to set aside the jury verdict and for a new trial, and
entered judgment in favor of the County for the difference between the basic
award it had paid the Calaways and the jury award. The Calaways now appeal the judgment and the order denying their
motion for a new trial. The County's
cross-appeal concerns the trial court's order denying the County costs, twelve
percent postjudgment interest and reimbursement for a special assessment.
II. THE CALAWAYS' APPEAL
The Calaways argue the
trial court erroneously exercised its discretion twelve times when it excluded
testimony or written evidence, and when it admitted testimony from the County's
expert appraiser. The admission of
evidence touching upon the value of property appropriated in condemnation cases
must be left largely to the trial judge's discretion. Leathem Smith Lodge, Inc. v. State, 94 Wis.2d 406,
409, 288 N.W.2d 808, 810 (1980) (quoting 5 Nichols, Eminent Domain,
§ 18.1[3] at 18-38-40). The burden of
showing an unreasonable exercise of discretion rests upon the Calaways, who
object to the trial court's exclusion of their evidence and admission of the
County's evidence. See id.
at 409, 288 N.W.2d at 810.
A. The Krueger Sale
We begin with the first
item of evidence the Calaways argue should have been admitted: evidence of a comparable sale. Evidence of comparable sales is admissible
on two grounds, either as independent direct evidence of the land's value, or
indirectly, for the more limited purpose of showing a basis for and giving
weight to the opinion of value of an expert witness. Kamrowski v. State, 37 Wis.2d 195, 201-02, 155
N.W.2d 125, 129 (1967).
The
general rule regarding admission of comparable sales as direct evidence of
value is more restrictive than the admissibility rule when the evidence is
offered only to show a basis for the opinion of an expert witness. Id. at 202, 155 N.W.2d at
129. When evidence of the price for
which similar property has been sold is offered as substantive proof of the
value of the property under consideration, a foundation should be laid showing
that the properties' locations are sufficiently near one another and that the
properties are sufficiently alike as to character, situation, usability and
improvements to make a true comparison.
See id. If two
pieces of land are so dissimilar as to mislead or prejudice the jury, then the
comparable sale evidence is inadmissible.
See id. at 203, 155 N.W.2d at 129.
Here, the Calaways
sought to introduce evidence of a claimed comparable sale of land by a private
landowner to the Oneida Tribe of Indians of Wisconsin (the "Krueger
sale"). This sale occurred four
and one-third years after the County acquired the Calaways' property. The Calaways argued the Krueger sale was
comparable because the land was similar in size, located one-half mile south of
the Calaways' property, in a similar zoning category and within the tribe's
original reservation. The Calaways
sought to introduce the Krueger sale apparently as both independent direct
evidence of their land's value and to show a basis for and give weight to their
expert witness' opinion of value. The
trial court granted the County's motion in limine to prohibit the evidence.
At
trial, the court explained that if a sale is not a true comparable sale, the
sale may not be admitted into evidence as substantive evidence of the value of
the land at issue in the trial.
Ultimately, the trial court concluded that the Krueger sale was
inadmissible because it was irrelevant, remote and unforeseeable at the time of
the taking.
The Calaways argue that
the trial court's decision reflected its conclusion that as a matter of law no
comparable sale that occurs after the date of taking is admissible. We disagree with the Calaways'
characterization of the trial court's ruling on the evidence. The trial court did not reject the evidence
as per se inadmissible; rather, it simply exercised its discretion, concluding that
the Krueger sale was not comparable because it was irrelevant, remote and
unforeseeable.
Next, we conclude that
the trial court reasonably exercised its discretion when it concluded the
Krueger sale was not comparable. To
determine the appropriate compensation for the partial taking of an owner's
property the jury must determine the fair market value of the parcel as a
whole, immediately before the taking, and the fair market value of the
remaining parcel immediately after the taking. See comments to Wis J I-Civil
8100 (1994). Thus, the time that
elapses before or after the taking and the alleged comparable sale is an
important factor to consider.
In Huse v.
Milwaukee County Expwy. Comm'n, 16 Wis.2d 225, 114 N.W.2d 429 (1962),
our supreme court noted that evidence of a comparable sale is generally
admissible where the sale is voluntary, not too remote in point in time, or is
not otherwise shown to have no probative value. Id. at 228, 114 N.W.2d at 430 (citing 55 A.L.R.2d
791 (1957)). Additionally, the court
stated that the matter of a change of circumstances between the date of the
purchase and the date of the taking may be of considerable significance in
determining the admissibility of evidence of the price paid. Id.
In this case, the
Krueger sale occurred four and one-third years after the Calaways' property was
taken. The trial court noted that Herro
v. DNR, 67 Wis.2d 407, 424, 227 N.W.2d 456, 467 (1975), recognized that
under the right circumstances, a time of up to eleven years between the date of
taking and the other sale might not be too remote. Herro also noted that Huse held that
a change in circumstances during the intervening time may affect the view of
what amount of time is too remote. Herro,
67 Wis.2d at 424, 227 N.W.2d at 467.
Using this analysis, the
trial court concluded that the Krueger sale was too remote because it occurred
four and one-third years after the taking.
Additionally, the trial court noted that even the Calaways' appraiser
acknowledged in his deposition that at the time of the taking he was not aware
nor could he have become aware of the tribe's prospective activities and future
successes. The trial court noted the
appraiser also testified that no other Brown County appraiser would have had
such knowledge. Thus, the trial court
concluded the Krueger sale was too remote from the taking to be considered a
comparable sale for the purpose of determining the value of the Calaways'
property at the time of the taking.
We agree with the trial
court's analysis. Not only did the
Krueger sale occur four and one-third years after the taking, the appraiser's
comments suggest circumstances may have changed considerably over those four
years, making the sale and the taking less comparable. See Huse, 16 Wis.2d at
228, 114 N.W.2d at 430 (the matter of a change of circumstances between the
date of the purchase and the date of the taking may be of considerable
significance in determining the admissibility of evidence of the price
paid).
Because we must search
the record for support of a court's evidentiary ruling, see State v.
Pharr, 115 Wis.2d 334, 343, 340 N.W.2d 498, 502 (1983), we consider the
County's alternative reason to sustain the trial court's ruling: evidence of the Krueger sale would have been
unduly prejudicial. The County
explains: "No jury could ignore
the dramatic jump in value represented by the Krueger sale. A real danger exists the jury would
inappropriately reward Calaways for this subsequent—and legally
irrelevant—change in market conditions."
We agree the danger of
unfair prejudice would have been high.
Thomas Calaway testified at trial that before the taking, he had spoken
to the tribe about selling his land. If
the jury also heard that the tribe bought neighboring land four and one-third
years after the taking, it is likely the jury would believe the Calaways would
have received the same level of compensation for their land in a sale to the
tribe. The problem with such a
conclusion is that the jury's role is not to determine the value of the land
four and one-third years after the taking.
Instead, the jury must decide the value of the land immediately before
taking, see comments to Wis J
I-Civil 8100, although the jury may base its determination on the most
advantageous use shown to exist, either at the time in question or within a
reasonable time in the near future, see Wis J I-Civil 8100.
The future uses considered, if any, must be so reasonably probable as to
affect present market value. See id. This means the jury would have the power to
consider that the Calaways could have sold the land to the tribe, but had to
determine the property's value as of 1990, not 1995. If the jury heard that the tribe was paying large sums in 1995,
there is a strong possibility that the jury would erroneously use the 1995
prices to determine the land's value as of 1990.
In light of these
concerns, we agree with the County that excluding the evidence was reasonable
because the Krueger sale evidence would have been unfairly prejudicial to the
County, whether it was offered as evidence of actual value, or for the more
limited purpose of showing a basis for an expert's opinion on value. See Kamrowski, 37
Wis.2d at 202-03, 155 N.W.2d at 129-30 (some evidence offered even for the
limited purpose may confuse or mislead the jury to such a degree that the trial
court should in its discretion refuse to admit the evidence).
The Calaways also argue
that the trial court's decision was based upon an erroneous view of the law
and, therefore, constitutes an erroneous exercise of discretion. See In re D.S., 142
Wis.2d 129, 134, 416 N.W.2d 292, 294 (1987).
They maintain the issue presented is whether it is proper in eminent
domain valuation litigation to utilize hindsight (i.e., facts occurring or
discovered after the date of taking) in valuing the condemnee's real estate as
of the date of taking. Furthermore, the
Calaways argue that a jury not only can but must view the condemnee's property
with the benefit of facts discovered or occurring after the date of taking but
before the commencement of the trial.
The Calaways cite
several cases from other states that involve subsequently obtained information
on the property's physical condition as it existed at the time of the
taking. See, e.g., San Diego
County Water Authority v. Mireiter, 23 Cal. Rptr.2d 455 (Cal. App.
1993) (discovery of pre-existing vernal pools may be considered to determine
fair market value); State v. Shein, 662 A.2d 1020, 1026 (N.J.
Super. A.D. 1995) (discovery of pre-existing wetlands may be considered to
determine fair market value). The
Calaways argue that these cases stand for the proposition that the trier of fact
in eminent domain valuation litigation must be fully apprised of all facts in
setting fair market value, even if those facts were not ascertained, or could
not have been ascertained, until after the date of valuation.
We are not convinced Mireiter
and Shein require us to reverse because these cases do
not involve the subject of this appeal:
admissibility of comparable sales.
We are unpersuaded that the rationale of those cases should be applied
in this case because a change in market value based on factors that developed
after the taking is substantially different from the discovery of some inherent
characteristic of the land existing but unknown at the time of the taking.
Finally, we examine the
Calaways' argument that the trial court misinterpreted § 32.09, Stats., which provides in part:
In all matters involving the
determination of just compensation in eminent domain proceedings, the following
rules shall be followed:
....
(1m) As a basis for determining value, a
commission in condemnation or a court may consider the price and other terms
and circumstances of any good faith sale or contract to sell and purchase
comparable property.
The Calaways argue the
trial court misapplied this section in two respects. First, they argue § 32.09(1m), Stats.,
"requires that the trier of fact be allowed to consider information about
the relevant real estate market which took place after the date of
taking." Second, they argue the
trial court misinterpreted the phrase "a court may consider the price and
other terms" as authorization for the court, rather than the jury, to
conclude whether the sales are comparable.
The Calaways explain that the legislature, in enacting 32.09(1m), sought
to expressly limit the trial court's discretion during jury trials to keep comparable
sale information from the trier of fact.
Thus, the Calaways argue the trial court erroneously refused to admit
evidence of the Krueger sale, "even though Appraiser Vogels expressly
stated his opinion in the Calaways' offer of proof that the sale satisfied the
requirements of section 32.09(1)."
We
are not persuaded. Even if the trial
court has the duty to make an initial decision to admit or exclude a comparable
sale, the jury or fact finder is still charged with the task of determining the
weight and effect that is to be given to the comparable sale. See Wis
J I-Civil 8120 (1994). Although juries are assigned this task, we
disagree with the Calaways' implication that the trial court has no control
over the evidence that goes before the jury.
Trial courts must analyze proffered comparable sales under both case law
governing comparable sales and the general rules of evidence, which allow a
trial court to exclude irrelevant evidence or relevant evidence that is
prejudicial, confusing, cumulative or a waste of time. See §§ 904.02 and 904.03, Stats.
The trial court, by excluding inadmissible evidence, does not usurp the
jury's power.
In sum, for the reasons
discussed and in light of our complete review of the record, we conclude the
trial court's decision to exclude the Krueger sale under the circumstances here
did not constitute an erroneous exercise of discretion.
B. Other
Excluded Evidence
The
Calaways argue the trial court erroneously exercised its discretion when it
excluded eleven other items of evidence.
Our review of the record convinces us the trial court reasonably
exercised its discretion in each case.
However, we will briefly address the evidence the Calaways sought to
admit.
First, the Calaways
sought to introduce evidence of negotiations with the tribe and the tribe's
interest in the property that occurred before the taking. Specifically, they wanted to introduce: (1)
a four million dollar option the Calaways gave the tribe that was never
executed; (2) the asking price the Calaways stated to the tribe during negotiations;
(3) Thomas' opinion whether he and Sandra could have sold their
one-hundred-fifty-seven-acre before-taking property to the tribe; (4) Thomas'
opinion whether he and Sandra could have sold their after-taking
eighty-five-acre parcel to the tribe; (5) Thomas' answer to a question
asking whether he had an opinion as to whether the tribe's interest in his
property is something a knowledgeable buyer would have considered before buying
Thomas' property; (6) the testimony of Jerry Hill, the former director of
economic development for the tribe; (7) a newspaper article stating the tribe
expected to earn a substantial profit in 1990; and (8) testimony from Thomas
about their asking price during negotiations with the tribe and an appraisal of
the land the tribe conducted during negotiations.
In each case, the trial
court concluded the evidence was speculative or irrelevant and, therefore,
refused its admission. We conclude the
trial court reasonably exercised its discretion. Although the tribe expressed an interest in the land, the offer
of proof from Jerry Hill and Thomas' testimony demonstrate that the
negotiations with the tribe were only in the preliminary stages at the time of
the taking, so introducing evidence about the tribe's apparent willingness or
ability to pay a specific price for the land in 1990 would be so speculative
that such evidence was reasonably excluded as evidence of the land's fair
market value.
The second set of
evidence the Calaways sought to introduce is related to the Krueger sale: (1) an appraiser's opinion that incorporated
data from the tribe's purchase of the Krueger land; (2) another appraiser's
opinion of fair market value based on the Krueger sale; and (3)
cross-examination testimony of the County's appraisal expert about the Krueger
sale. We have already concluded the
trial court reasonably exercised its discretion when it excluded evidence of
the Krueger sale as a comparable sale.
For the same reasons, the trial court reasonably exercised its
discretion when it excluded additional evidence involving the Krueger sale.
C. Admission of
the County's Expert Testimony
The
Calaways argue the trial court erroneously exercised its discretion when it
allowed the County's real estate appraiser expert to testify. We note that the Calaways devoted only a few
lines of their forty-eight-page brief to this argument, stating, "For the
reasons already stated in Argument #1 of this Brief, that decision was in error
and that error was prejudicial to the Calaways' case." Because the Calaways unreasonably expect
this court to select and apply cases and arguments from their brief's earlier
sections, we conclude the issue is inadequately briefed and therefore decline
to review it. See State v.
Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642 (Ct. App. 1992) (court
of appeals may decline to review an issue inadequately briefed).
III. THE
COUNTY'S CROSS APPEAL
The
County raises three issues on its cross-appeal, arguing: (1) it is entitled to costs and
disbursements; (2) it should have received twelve percent rather than five
percent postjudgment interest; and (3) it should be reimbursed for an
undisclosed special assessment on the condemned property. We examine each issue in turn.
A. Costs and Disbursements
The County argues that
as the successful party, it is entitled to costs and disbursements, pursuant to
§ 32.28, Stats., and ch.
814, Stats. Whether the County is entitled to costs
involves the interpretation and application of statutes to undisputed facts, a
question of law that we review independently of the trial court's
determinations. See Dorschner v.
DOT, 183 Wis.2d 236, 239, 515 N.W.2d 311, 312 (Ct. App. 1994).
The County's argument is
based on § 32.28(2), Stats.,
which provides in relevant part:
(2) Except as provided in sub. (3),
costs shall be allowed under ch. 814 in any action brought under this
chapter. If the amount of just
compensation found by the court or commissioners of condemnation exceeds the
jurisdictional offer or the highest written offer prior to the jurisdictional
offer, the condemnee shall be deemed the successful party under s. 814.02(2).
There
are two questions that must be answered to determine whether the County is
entitled to costs: (1) does the costs
provision of § 32.28(2) apply to both condemnors and condemnees, and (2) if it
does, under which section of ch. 814, Stats.,
can the condemnor recover?
First, we conclude that
§ 32.28(2), Stats., unambiguously
provides that in eminent domain proceedings, costs shall be allowed under ch.
814, Stats. We are not convinced by the Calaways'
argument that because the legislature in § 32.28(3), Stats., provided that condemnees can
receive litigation expenses under specified circumstances, § 32.28, Stats., was designed to allow only
condemnees to recover costs. We read §
32.28 as providing that either party can receive costs pursuant to ch. 814, and
that the condemnee can receive actual costs if certain conditions exist.
Next, we must look to
ch. 814, Stats., to determine
which section governs costs for condemnors.
The County argues that it should receive costs under § 814.03(1), Stats., which provides: "If the Plaintiff is not entitled to
costs under s. 814.01 (1) or (3), the defendant shall be allowed costs to be
computed on the basis of the demands of the complaint."
Alternatively, the
County argues the omnibus costs provision, § 814.036, Stats.,
which the trial court concluded was the appropriate statute to apply, is a
basis upon which the trial court may, in its discretion, award costs. The County argues the trial court
erroneously exercised its discretion when it denied the County costs; the
Calaways argue the trial court's exercise of discretion was reasonable.
A third potentially
applicable statute not identified by either party is § 814.02(2), Stats., which provides:
In equitable actions and special
proceedings costs may be allowed or not to any party, in whole or in part, in
the discretion of the court, and in any such case the court may award to the
successful party such costs (exclusive of disbursements) not exceeding $100, as
the court deems reasonable and just, in view of the nature of the case and the
work involved. This subsection refers
only to such costs and fees as may be taxed by the authority of the statutes,
independent of any contract of the parties upon the subject, which contract
shall apply unless the court finds that the provisions thereof are inequitable
or unjust.
We conclude § 814.02(2),
Stats., is the appropriate
section to apply for several reasons.
First, § 814.02(2) explicitly applies to special proceedings. The eminent domain proceeding is a special
proceeding. Martineau v. State
Conservation Comm'n, 66 Wis.2d 439, 446, 225 N.W.2d 613, 616
(1975). Second, § 32.28(2), Stats., explains the circumstances
under which a condemnee is a "successful party" under §
814.02(2). The logical reason the
legislature included this information in § 32.28(2) was to guide trial
courts as they applied § 814.02(2).
Finally, our conclusion is consistent with the statutes that governed
costs prior to the 1977 creation of § 32.28, Stats. These prior statutes explicitly provided
that costs were allowed pursuant to § 814.02(2). See §§ 32.05(10)(b) and 32.05(11)(a) and (b), Stats., 1975. We have found no evidence in the legislative history of § 32.28
that suggests the legislature intended for a different section of ch. 814, Stats., to guide the assessment of
costs in condemnation cases.
Having concluded the
County is entitled to seek costs under §§ 32.28(2) and 814.02(2), Stats., we must examine whether the
trial court appropriately denied costs.
Under § 814.02(2), the trial court may, in its discretion, award the
successful party costs not exceeding $100.
In its written decision, the trial court concluded, "By the court's
discretion, the County is denied costs and disbursements." The trial court did not give any reasons for
its exercise of discretion and, thus, we reluctantly reverse and remand the
case on this issue so the trial court can articulate the reasons supporting its
exercise of discretion. See Schmid
v. Olsen, 111 Wis.2d 228, 237, 330 N.W.2d 547, 551-52 (1983) (the court
acts in excess of its discretion if it fails to state why and how it made its
decision).
B. Postjudgment Interest
The parties do not
dispute that the County is entitled to prejudgment interest at the rate of five
percent. At issue is whether the
postjudgment interest rate should be the legal rate of five percent, or twelve
percent as provided in § 815.05(8), Stats. The County argues it is entitled to
postjudgment interest at the rate of twelve percent. The Calaways argue the rate should be five percent. This issue involves the interpretation of
several statutes to undisputed facts, a question of law that we review
independently of the trial court's determinations. See Dorschner, 183 Wis.2d at 239, 515 N.W.2d at
312.
It is undisputed that
because the Calaways appealed the commission's award to the circuit court, §
32.05(10), Stats., governs this
situation. Section 32.05(10) provides
in relevant part:
(b) The court shall enter judgment for the
amount found to be due after giving effect to any amount paid by reason of a
prior award. The judgment shall include
legal interest on the amount so found due from the date of taking if judgment
is for the condemnor, and from 14 days after the date of taking if judgment is
for the condemnee.
Under § 32.05(10)(b), Stats., the prevailing party is
entitled to prejudgment legal interest.
The term legal interest refers to § 138.04, Stats., which indicates the legal rate of interest is five
percent. See Milwaukee &
Suburban Transp. Corp. v. Milwaukee County, 82 Wis.2d 420, 452, 263
N.W.2d 503, 520 (1978) (term "legal interest" in § 32.05(11)(b), Stats., refers to interest at the legal
rate of five percent, as provided by § 138.04); § 138.04, Stats.
In Burlington
Northern R.R. v. City of Superior, 159 Wis.2d 434, 441, 464 N.W.2d 643,
646 (1991), our supreme court held that § 815.05(8), Stats., establishes the postjudgment interest rate for every
judgment for which the legislature has not explicitly provided a different
postjudgment interest rate. Thus,
whether the Calaways must pay twelve percent postjudgment interest depends on
whether § 32.05(10)(b), Stats.,
explicitly provides a different postjudgment interest rate. We conclude § 32.05(10)(b) does not
explicitly provide a different postjudgment interest rate and, therefore, the
County is entitled to postjudgment interest at the rate of twelve percent.
The Calaways agree that
§ 32.05(10)(b), Stats., is silent
as to the end date of the running of the interest. They also note that various provisions of § 32.05, Stats., are poorly drafted, because the
legislature used different words in sections that govern similar
situations. However, they argue that
the clear thrust of the statutory scheme is that interest is to run, regardless
of which side wins, from the date of taking to the date of payment in full at
the legal rate of interest. The
Calaways' argument is based in large part on § 32.05(11)(b), Stats., which explicitly provides that
if the property owner is successful, he or she shall have judgment plus legal
interest "to date of payment in full." Our supreme court has held that this section requires the payment
of postjudgment interest at the legal rate of five percent. Milwaukee & Suburban Transp.,
82 Wis.2d at 452, 263 N.W.2d at 520.
We disagree that the
explicit language of § 32.05(11)(b), Stats.,
can be applied to all of § 32.05. When
the legislature amends a statute, § 32.05(11)(b) in this case, it is presumed
to have full knowledge of existing statutes.
See Murphy v. LIRC, 183 Wis.2d 205, 218, 515 N.W.2d 487,
493 (Ct. App. 1994). We note that prior
to 1967, § 32.05(11)(b) contained language similar to that found in the current
versions of §§ 32.05(10)(b) and 32.05(11)(a), Stats.,
providing that the condemnee would have judgment plus "legal interest
thereon to date of entry of judgment."
Section 32.05(11)(b), Stats.,
1965. Then, in 1967, a bill was
introduced in the legislature that would have specifically amended §§ 32.05(10)(b)
and 32.05(11)(b) to include the phrase "legal interest thereon to date of
payment in full." See 1967
S.B. 467. For reasons not apparent in
the legislative history, the bill was amended so that only changes to
§ 32.05(11)(b) were eventually passed.
See ch. 331, Laws of 1967.
We are unconvinced that
where the legislature considered amending several sections and ultimately
amended only one of the statutes dealing with the same issue, it somehow
intended its amendment to § 32.05(11)(b), Stats., to apply to all of § 32.05, Stats.
Instead, we must presume the legislature was aware of other provisions
in § 32.05 that also dealt with interest awards, see Murphy,
183 Wis.2d at 218, 515 N.W.2d at 493, and, for reasons unknown to this court,
chose not to amend those statutes.
Furthermore, where the legislature uses similar but different terms in a
statute, particularly within the same section, we must presume it intended
those terms to have different, distinct meanings. American Motorists Ins. Co. v.
R & S Meats, Inc., 190 Wis.2d 196, 214, 526 N.W.2d
791, 798 (Ct. App. 1994). Therefore, we
presume that where the legislature used a unique phrase within
§ 32.05(11)(b) (i.e., "to date of payment in full"), it
intended that phrase to have a meaning different from other words in § 32.05
that are used to address interest.
Thus, it appears from
the legislative history that the legislature intended to provide that judgments
under § 32.05(11)(b), Stats.,
would include recovery at five percent, the legal rate of interest, for both
prejudgment and postjudgment interest.
Because the legislature specifically chose not to amend
§ 32.05(10)(b), Stats., and
because this statute remains silent as to the rate of postjudgment interest,
this court has no alternative but to apply the postjudgment rate of interest
established by § 815.05(8), Stats. See Burlington, 159
Wis.2d at 441, 464 N.W.2d at 646 (§ 815.05(8) establishes the postjudgment
interest rate for every judgment for which the legislature has not explicitly provided
a different postjudgment interest rate).
We recognize that our conclusion means condemnees will earn different
rates of postjudgment interest, depending on whether they proceed under
§§ 32.05(10) or 32.05(11), Stats. The difference in the statutes is the result of the
legislature's unambiguous choice to amend only one of the sections relating to
interest. See ch. 331, Laws of
1967. If the parties believe there
should be a uniform rate of postjudgment interest for all condemnation cases,
they must look to the legislature for relief.
It is not the function of this court to rewrite the statute.
For these reasons, we
conclude the trial court erred when it awarded the County only five percent
postjudgment interest. The County is
entitled to postjudgment interest at the rate of twelve percent, as provided in
§ 815.05(8), Stats.
C. The Special
Assessment
The
County argues the Calaways should have to pay $20,000 to satisfy an undisclosed
special assessment on the condemned property.
It is undisputed that the local sanitary district installed sewers on
the Calaways' property shortly before the taking and levied a special
assessment against the property for $23,342, which was to be paid in ten annual
installments. The County states that at
the closing, for reasons unknown, it mistook the first annual payment of
$3,221.72 (which was then due) as the entire special assessment, and deducted
it from the basic award in the closing statement. The County argues, "The plaintiffs said nothing about this,
even though they knew the closing documents were inaccurate." Ultimately, the County paid the sanitary
district over $20,000 and now seeks reimbursement from the Calaways.
The County argues the
issue presented is the determination of the Calaways' legal duty to notify the
County that the County's title search had failed to identify the entire special
assessment. However, the Calaways'
knowledge of or alleged duty to notify the County is not relevant to the issue
presented. We conclude that where it is
undisputed that there is an unpaid special assessment on the condemned property
that was not discovered at the time of the basic award, the trial court must,
upon motion by the condemnor in a condemnation action, order the condemnees to
reimburse the condemnor for any additional special assessments the condemnor
had to pay. This will rectify the
situation where the condemnor pays the full value of the land and thereafter is
forced to pay again to holders of special assessments on the land when the
special assessments become due.
Our reasoning is based
on the undisputed facts of this case.
The Calaways do not dispute that the County rightfully deducted from the
basic award the cost of the special assessment against the property, which the
County mistakenly identified as $3,221 and paid to the sanitary district. Additionally, the Calaways do not dispute
that the actual special assessment against their property was over $20,000, to
be paid in installments over ten years.
Thus, the only argument the Calaways make is that the County negligently
failed to find the full assessment and to deduct the assessment from the basic
award and, therefore, they are entitled to keep the money. In other words, the Calaways believe they
are entitled to recover twice, by receiving the full value of their property
and payment of the assessment on their property. We do not agree.
The County as condemnor
is entitled to a clear, unencumbered title to the Calaways' property. Toward this end, the County paid the special
assessment, as well as delinquent taxes on the property, and deducted the
payments from the basic award. Where
the County, after paying the basic award, identifies an additional, undisputed
special assessment against the property and asks the trial court in the course
of a condemnation action to order the condemnees to reimburse the condemnor for
the special assessment, the trial court is required to grant such a
motion. Therefore, we reverse the trial
court's order denying the County reimbursement for the special assessment and
remand the case with directions that the trial court enter an order directing
the Calaways to pay the difference between the entire special assessment the
County paid and that portion of the special assessment that was already
deducted from the basic award.
IV. CONCLUSION
In sum, we conclude the
trial court reasonably exercised its discretion when it excluded and admitted
evidence at trial and, therefore, the Calaways are not entitled to a new
trial. However, we reverse the trial court's
decision to deny the County twelve percent postjudgment interest and
reimbursement for the special assessment it paid. We also reverse the trial court's denial of costs because it did
not articulate the reasons for its exercise of discretion. We remand the case with directions that the
trial court order the Calaways to reimburse the County for the special
assessment and articulate the reasons for its exercise of discretion on the
issue of whether to award costs to the County.
By the Court.—Judgment
and order affirmed in part; reversed in part and cause remanded with
directions. No costs on appeal.
