Geise v. American Transmission Co.
Geise v. American Transmission Co.
Opinion of the Court
¶ 1. This is an eminent domain case involving a taking by American Transmission Company LLC, and ATC Management Inc. (ATC) of 2.89 acres owned by Geise for an electric transmission line project. ATC appeals the circuit court's denial of ATC's motion to set aside the jury's verdict on the ground that the jury's verdict was not supported by any credible evidence, and that the jury ignored the court's jury instruction not to speculate about damages not in evidence. For the reasons that follow, we conclude that credible evidence supports the jury's verdict and that
¶ 2. Geise cross-appeals the circuit court's denial of his request for post-judgment interest. Geise argues that the circuit court's construction of Wis. Stat. § 32.06(10)(d) (2011-12)
BACKGROUND
¶ 3. Geise owns a 119.94 acre parcel of land in the Town of Waterloo. The property is zoned as an exclusive agricultural district and contains a residence, barn, silo, and other outbuildings.
¶ 4. ATC made a jurisdictional offer to Geise to acquire two easements, totaling 2.89 acres, for the construction and maintenance of a 138 kilovolt electric transmission line on Geise's property. Geise rejected the offer. ATC filed a verified petition with the Jefferson County condemnation commission for condemnation proceedings to acquire the easements. Following a hearing, the condemnation commission awarded Geise the amount that would represent just compensation for ATC's taking of easements by condemnation. Geise appealed the award of the condemnation commission to the circuit court.
¶ 6. At one point during the trial, a juror submitted a question to the court, asking whether Geise had previously received any compensation for, among other things, any "loss of use of [the] land" or "inconvenience." The juror also asked whether the jury's role was to determine "everything" for which Geise "should be compensated." With the approval of both parties, the court added to the end of two parts of a standard jury instruction that the jury should not "speculate about any damages which were not in evidence."
¶ 8. ATC moved the circuit court to set aside the verdict and order a new trial. ATC primarily argued that the verdict was not supported by credible evidence because the jury's findings on value were not within the range of values placed in evidence. The court denied the motion on the grounds that: (1) the jury's findings were not "outrageous" because the jury was permitted to weigh the comparable sales evidence on which the experts based their opinions and to make adjustments to that evidence; and (2) Geise's "ultimate award," the difference between the jury's two findings, was within the range of the expert testimony.
¶ 9. Geise subsequently petitioned for an award of litigation expenses, including post-judgment interest. The circuit court entered an order denying Geise post-judgment interest under Wis. Stat. § 32.06(10)(d). The court interpreted § 32.06(10)(d) to mean that a party is not entitled to post-judgment interest where, as here, an appeal is taken to this court in a condemnation proceeding not involving transportation matters. Geise moved for reconsideration. The court denied the motion and entered an order for judgment. Geise cross-appeals.
DISCUSSION
I. ATC's Appeal
A. Credible Evidence Supports the Verdict
¶ 10. ATC argues that the jury's verdict is not supported by any credible evidence and therefore the
¶ 11. In response, Geise argues that there was substantial credible evidence to support the jury's values. Geise argues that the jury was "not limited to considering only the ultimate opinions of expert appraisers as to fair market value" but instead could "consider and weigh all evidence" admitted at trial, including the comparable sales evidence on which the experts based their opinions, quoting Milwaukee Rescue Mission, Inc. v. Redevelopment Authority, 161 Wis. 2d 472, 486, 468 N.W.2d 663 (1991). Geise also argues that the jury was not required to accept the
¶ 12. The scope of our review of a jury's verdict was summarized in D.L. Anderson's Lakeside Leisure Co. v. Anderson, 2008 WI 126, ¶ 22, 314 Wis. 2d 560, 757 N.W.2d 803:
When reviewing a jury verdict, we affirm if the record contains any credible evidence to support the verdict; this is even more true when the trial court gives its explicit approval to the verdict by considering and denying postverdict motions. The reviewing court has a duty to search for credible evidence to sustain the jury's verdict. We afford special deference to a jury determination in those situations in which the trial court approves the finding of a jury. In such cases, this court will not overturn the jury's verdict unless there is such a complete failure of proof that the verdict must be based on speculation. A challenge to the sufficiency of the evidence is evaluated in light of the jury instructions.
(citations and quotations omitted). This standard of review is applicable in condemnation cases. Weeden, 29 Wis. 2d at 666.
¶ 13. The jury in this case heard conflicting expert testimony regarding the fair market value of Geise's property. The jury, as the trier of fact, "determines the credibility of the witnesses, resolves conflicts
¶ 14. We conclude that the verdict need not be set aside on the ground that the before- and after-taking values arrived at by the jury exceed the values offered by the experts. It is true that, in the cases cited by ATC, the supreme court noted that the values arrived at by the jury were within the range of values offered by the expert appraisers, and indicated that this provided support for sustaining the verdicts. However, the court did not hold that a jury verdict setting the value of property may be sustained only where the values found by the jury are within the range of values offered by the experts. Indeed, case law demonstrates there is no such limitation: "the jury should not be limited to the range of fair market values supplied by appraisal experts." Milwaukee Rescue Mission, 161 Wis. 2d at 486; see also Hurkman v. State, 24 Wis. 2d 634, 639, 641-42, 130 N.W.2d 244 (1964) (sustaining verdict where after-taking value found by the jury was below the range established by the testimony of the appraisal experts). Accordingly, we reject ATC's contention that a verdict must be set aside where the values arrived at by the jury exceed the values offered by the expert appraisers.
¶ 16. Indeed, the trial court instructed the jury that it was permitted to consider the comparable sales evidence relied on by the experts in determining the fair market value of Geise's property:
In determining fair market value, you may consider the price and other terms and circumstances of any good faith sale of comparable property. A sale is comparable if it was made within a reasonable time before or after May 18, 2009 [the date ATC filed a verified petition for condemnation proceedings], and if that property is sufficiently-similar with respect to ... location, situation, usability, improvements and other characteristics to warrant a reasonable belief that it is comparable to the property being valued.
*465 You are to consider all of the elements of similarity and dissimilarity in deciding whether the other sales assist you in determining the fair market value of the property on May 18, 2009, and/or the fair market value of the remaining property immediately after that date as if the public project had been completed by that date.
See Wis JI—Civil 8120.
¶ 17. The jury was also instructed that "[i]n weighing the evidence," it could "take into account matters of. . . common knowledge and . . . observations and experiences in the affairs of life." Thus, the jury was not required to accept an expert's opinion as to what increases or decreases the value of a particular property but rather could consider its own observations and experiences regarding what makes a property more or less valuable. Here, the jury could have determined that Geise's property had distinctive features that made it more valuable than the properties that the experts compared to Geise's property and thus made adjustments, taking into account its own observations and experiences regarding the value of those distinctive features.
¶ 18. What ATC appears to be really arguing is that the jury verdict cannot be sustained because the jury's interpretation of the credible evidence does not comport with the experts' interpretation of that evidence. However, as we have explained, the jury was not required to weigh the evidence as any of the experts did.
¶ 19. Additionally, it is the burden of the party challenging the verdict to explain why there is no credible evidence to support the jury's verdict. ATC has not met its burden here. As we have explained, ATC's only argument in its brief-in-chief — that the verdict was not supported by credible evidence because the
¶ 20. However, ATC contends in its reply brief that the comparable sales evidence could not be considered by the jury as direct evidence of the value of Geise's property because, according to ATC, Geise failed to lay a proper foundation to show that the allegedly comparable properties relied on by the experts were in fact comparable to Geise's property. Instead, ATC quotes Calaway v. Brown County, 202 Wis. 2d 736, 741, 553 N.W.2d 809 (Ct. App. 1996), for the proposition that such evidence could be considered only for the "limited purpose of showing a basis for and giving weight to the opinion of value of an expert witness." We reject this argument.
¶ 21. The trial transcript does not support ATC's assertion that Geise failed to lay a foundation for the introduction of the comparable sales evidence as direct evidence of the fair market value of Geise's property. Kielisch provided substantial testimony about numerous properties he determined to be comparable to Geise's property and the factors he considered in making that determination, such as the location and size of the property, the date of the sale, and the characteristics of the land involved.
¶ 22. In sum, we conclude that ATC has not shown that the verdict was not supported by any credible evidence.
B. The Jury Did Not Ignore the Court's Instruction
¶ 23. ATC argues that the jury must have ignored the court's instruction not to speculate about damages not in evidence. In support, ATC points to a juror's questions to the court and reasserts that there is no credible evidence to support the verdict. We understand ATC to argue that, because the jury's values exceed the values presented by the experts, the jury must have ignored the court's instruction and considered impermissible factors such as "inconvenience." This argument lacks merit.
¶ 24. At trial, while the jury was taking a break after Geise's cross-examination of MacWilliams and before ATC's redirect examination, the court received a note from a juror, stating:
Has Mr. Geise previously received any compensation for any of the elements being considered today from ATC?
Example:
• Loss Of Use Of Land
*468 • Easement Taking
• Trees
• Asthetics [sic]
• Inconvenience
Foundation:
Are we determining EVERYTHING that should be compensated, or was [Geise] already compensated for a percentage or portion or other loss?
¶ 25. The court conferred with ATC and Geise on how to respond to the juror's questions. The court proposed, and the parties agreed, to add the following language to the end of two parts of a standard jury instruction: "nor should you speculate about any damages which were not in evidence."
¶ 26. ATC's contention that the jury must have ignored the circuit court's admonition not to speculate about damages not in evidence hinges entirely on its first argument that the jury's verdict was not supported by any credible evidence. We have already rejected that argument. Moreover, it is presumed that jurors follow the jury instructions given by the court. State v. LaCount, 2008 WI 59, ¶ 23, 310 Wis. 2d 85, 750 N.W.2d 780.
¶ 27. Furthermore, at least some of the factors the jury inquired about are appropriate for the jury's consideration in determining fair market value, such as the value of the trees that were removed after the taking. See Arents v. ANR Pipeline Co., 2005 WI App 61, ¶ 15, 281 Wis. 2d 173, 696 N.W.2d 194 ("any factor affecting the value of property that could influence or sway the decision of a prospective buyer should be
¶ 28. In sum, we conclude that ATC has failed to show that the jury ignored the circuit court's jury instruction not to speculate about damages not in evidence.
II. Geise's Cross-Appeal
¶ 29. On cross-appeal, the parties dispute whether the circuit court erred in denying post-judgment interest to Geise under Wis. Stat. § 32.06(10)(d). The circuit court determined that, under § 32.06(10)(d), "interest has and does not accrue on the judgment amount (total awarded by jury plus costs of litigation) as a result of ATC's appeal, which has been filed." This is an issue of first impression.
¶ 30. To resolve the parties' dispute, we must engage in statutory interpretation. "[Statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting another source). "[Statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its
¶ 31. Wisconsin Stat. § 32.06(10)(a)-(d) governs a party's obligation to pay a judgment and interest in a condemnation proceeding not involving transportation matters. The provision at issue here, § 32.06(10)(d), regarding post-judgment interest, provides in full:
All judgments required to be paid shall be paid within 60 days after entry of judgment unless within this period appeal is taken to the court of appeals or unless condemnor has petitioned for and been granted an order abandoning the condemnation proceeding. Otherwise such judgment shall bear interest from the date of entry of judgment at the rate of 10% per year until payment.
¶ 32. Geise argues that he is entitled to post-judgment interest under Wis. Stat. § 32.06(10)(d). Geise contends that the only reasonable construction of the statute is that: (1) a judgment required to be paid must be paid within sixty days after entry of the judgment; (2) "otherwise" — meaning that if the judgment is not paid within that sixty day period— the judgment bears interest from the date of entry of judgment at a rate of ten percent per year until the judgment is paid in full; and (3) the sixty-day time period for paying a judgment is tolled if (a) an appeal is taken to the court of appeals within that sixty-day period, or (b) the condemnor petitions for and is granted an order abandoning the condemnation proceeding. Geise contends that the construction adopted by the circuit court produces an absurd result because it
¶ 33. In response, ATC argues that Wis. Stat. § 32.06(10)(d) tolls the accrual of interest on a judgment during the pendency of an appeal. ATC reads the statute in this way:
[T]he judgment is to be paid within 60 days after the entry of judgment, unless 1) there is an appeal to the court of appeals within that 60 day period, or 2) the condemnor petitions for and is granted an order abandoning the condemnation proceedings. 'Otherwise,'— that is, if there is no appeal or abandonment of the condemnation proceeding — 'such judgment shall bear interest from the date of entry of judgment at the rate of 10% per year until payment.' Wis. Stat. § 32.06(10)(d).
Although ATC refers to "tolling" and appears to additionally argue that the statute tolls the accrual of interest during the pendency of an appeal, ATC's interpretation of the statute does not support its assertion that an appeal does not eliminate the interest requirement, but rather tolls interest during the pendency of an appeal.
¶ 34. We conclude that the only reasonable way to read Wis. Stat. § 32.06(10)(d) is that: (1) a party re
¶ 35. Our construction of Wis. Stat. § 32.06(10)(d) is the only reasonable construction because it avoids an absurd result. Particularly as to large judgments, our construction avoids providing an incentive to the losing party in the circuit court to appeal a judgment on any non-frivolous ground, no matter how weak, to avoid paying post-judgment interest. Under ATC's construction, a party obligated to pay a large judgment would have little, if any, reason not to file an appeal, even where the appeal has little merit and thus has the potential to waste judicial time and resources. Indeed, so far as we can tell, under ATC's construction, a losing party could file an appeal, meritorious or not, thereby avoiding the interest provision, and later voluntarily dismiss the appeal.
¶ 37. ATC argues that Geise's construction of Wis. Stat. § 32.06(10)(d), which we adopt, is absurd and unreasonable. In support, ATC argues that Geise's reading of "otherwise" would require a condemnor to pay post-judgment interest, even where the condemnor petitioned for and obtained an order to abandon the condemnation proceeding. We reject this argument.
¶ 38. A party that prevails in the circuit court is entitled to post-judgment interest only where a judgment required to be paid is not paid within sixty days after entry of judgment. Where the condemnor petitions for and obtains an order to abandon the condemnation proceeding, the condemnor is not required to pay the judgment. This is a matter of common sense. A condemnor who is granted an order to abandon the proceeding has not taken any property and thus owes
¶ 39. ATC also argues that Geise's construction of the statute is absurd because, under that construction, the party that prevails in the circuit court is entitled to post-judgment interest even when the judgment is overturned on appeal. However, as we explained above, a party is only entitled to post-judgment interest where the judgment is required to be paid, and, also as a matter of common sense, a judgment that is overturned on appeal is not required to be paid and thus does not bear interest.
¶ 40. In sum, we agree that Geise's construction of Wis. Stat. § 32.06(10)(d) is the only reasonable construction of the statute and therefore reverse the circuit court's order denying post-judgment interest to Geise. We remand to the circuit court to determine the amount of post-judgment interest due Geise under the proper construction of Wis. Stat. § 32.06(10)(d).
Order affirmed; order reversed and cause remanded with directions.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
Geise's expert, Kurt Kielisch, also appraised Geise's property by using the cost approach, which focuses on valuing the property's improvements, and testified about his results using that approach. However, Kielisch ultimately determined the value of Geise's property using the comparable sales approach.
ATC also argues that Geise's own testimony did not provide credible evidence to support the verdict because Geise had no basis for his opinion, as required under Genge v. City of
Geise makes other arguments in support of his contention that he is entitled to post-judgment interest under Wis. Stat. § 32.06(10)(d). However, we need not address those arguments to resolve this appeal.
We note that ATC refers to "tolling," but we find no place in ATC's briefing where it explains how tolling is supported by statutory language.
We note, however, that a condemnee may be awarded litigation expenses in an abandoned condemnation proceeding. Wis. Stat. § 32.28(3)(a). We also note that a court may grant a condemnor's petition to abandon the condemnation proceeding "upon such terms as it deems just." Wis. Stat. § 32.06(9)(a).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.