Wisconsin Statutes

Wis. Stat. § 32.28 (2026)

Costs

✓ current as of July 2026

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32.2832.28 Costs.

32.28(1)(1) In this section:

32.28(1)(a)(a) “Consumer price index” means the average of the consumer price index over each 12-month period, all items, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.

32.28(1)(b)(b) “Litigation expenses” means the sum of the costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners, board of assessment or any court under this chapter.

32.28(2)(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).

32.28(3)(3) In lieu of costs under ch. 814, litigation expenses shall be awarded to the condemnee if:

32.28(3)(a)(a) The proceeding is abandoned by the condemnor;

32.28(3)(b)(b) The court determines that the condemnor does not have the right to condemn part or all of the property described in the jurisdictional offer or there is no necessity for its taking;

32.28(3)(c)(c) The judgment is for the plaintiff in an action under s. 32.10;

32.28(3)(d)(d) The award of the condemnation commission under s. 32.05 (9) or 32.06 (8) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent and neither party appeals the award to the circuit court;

32.28(3)(e)(e) The jury verdict as approved by the court under s. 32.05 (11) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent;

32.28(3)(f)(f) The condemnee appeals an award of the condemnation commission which exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the award of the condemnation commission by at least the amount specified in sub. (4) and at least 15 percent;

32.28(3)(g)(g) The condemnor appeals the award of the condemnation commission, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent;

32.28(3)(h)(h) The condemnee appeals an award of the condemnation commission which does not exceed the jurisdictional offer or the highest written offer prior to the jurisdictional offer by 15 percent, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent; or

32.28(3)(i)(i) The condemnee appeals an assessment of damages and benefits under s. 32.61 (3), if the judgment is at least the amount specified in sub. (4) and at least 15 percent greater than the award made by the city.

32.28(4)(4)

32.28(4)(a)(a) The amount for the purposes of sub. (3) (d) to (i) shall be $2,700, adjusted as specified in par. (b).

32.28(4)(b)(b) Beginning on January 1, 2018, and annually on January 1 thereafter, the department of administration shall adjust the dollar amount specified in par. (a) by an amount equal to that dollar amount multiplied by the percentage change in the consumer price index for the prior year, rounded to the nearest dollar. The department shall publish the dollar amounts on its Internet site. Notwithstanding s. 227.10, the adjusted dollar amounts need not be promulgated as rules under ch. 227.

32.28 HistoryHistory: 1977 c. 440; 1983 a. 236; 1995 a. 140; 2017 a. 59; 2021 a. 238.

32.28 AnnotationUnder sub. (3) (d), the difference between the award and offer must meet both the $700 and 15 percent tests, but the two are not cumulative. City of La Crosse v. Benson, 101 Wis. 2d 691, 305 N.W.2d 184 (Ct. App. 1981).

32.28 AnnotationA condemnee may not recover attorney fees incurred prior to a jurisdictional offer. A contingent fee of 40 percent of an award, plus interest, was reasonable. A condemnor must pay an appraiser for time spent as an adviser during most of a trial. Kluenker v. DOT, 109 Wis. 2d 602, 327 N.W.2d 145 (Ct. App. 1982).

32.28 AnnotationAn evidentiary hearing on the reasonableness of litigation expenses is discretionary, not mandatory. Appellate litigation expenses may be awarded. Narloch v. DOT, 115 Wis. 2d 419, 340 N.W.2d 542 (1983).

32.28 AnnotationFor attorney fees to be found reasonable, a condemnee is not required to retain counsel from the locality where the condemned property is located. It implies a reasonable choice of counsel based on the facts of the case. Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 349 N.W.2d 661 (1984).

32.28 AnnotationLitigation expenses were properly awarded under sub. (3) (b) when the condemnor failed to establish the necessity for taking the property. Toombs v. Washburn County, 119 Wis. 2d 346, 350 N.W.2d 720 (Ct. App. 1984).

32.28 AnnotationA successful plaintiff in an inverse condemnation action was entitled to litigation expenses, which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under s. 32.11 were not recoverable. Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 353 N.W.2d 812 (Ct. App. 1984).

32.28 AnnotationAn award under s. 32.06 (8) exclusively for a tenant’s immovable fixtures constitutes a separate award for purposes of sub. (3) (d). The unit rule of damages is inapplicable. Litigation expenses are awarded by court order, not by the clerk under s. 814.10. Redevelopment Authority v. Bee Frank, Inc., 120 Wis. 2d 402, 355 N.W.2d 240 (1984).

32.28 AnnotationA contingent fee contract, while not improper, is only a guide in awarding expenses under sub. (3) (e). Milwaukee Rescue Mission, Inc. v. Redevelopment Authority, 161 Wis. 2d 472, 468 N.W.2d 663 (1991).

32.28 AnnotationA judge who assigns a condemnation petition to the commission may award attorney fees when neither party appeals the commission’s award. Discussing contingent fees as the basis of an award. Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 496 N.W.2d 57 (1993).

32.28 AnnotationThe award of litigation expenses upon abandonment of condemnation proceedings applies to all condemnations under this chapter. Expenses may be awarded when any proceeding in the process is abandoned. Pelfresne v. Dane County Regional Airport, 186 Wis. 2d 538, 521 N.W.2d 460 (Ct. App. 1994).

32.28 AnnotationWhen an award is appealed, but does not proceed to a verdict, the issue of litigation expenses is treated as arising under sub. (3) (d). Dickie v. City of Tomah, 190 Wis. 2d 455, 527 N.W.2d 697 (Ct. App. 1994).

32.28 AnnotationAttorney fees may not be awarded when an attorney-client relationship does not exist. An attorney represented by the attorney’s own law firm is not entitled to attorney fees. Dickie v. City of Tomah, 190 Wis. 2d 455, 527 N.W.2d 697 (Ct. App. 1994).

32.28 AnnotationWhen language in a lease provided that the lessor would receive all of any condemnation award, the calculation of the 15 percent under sub. (3) (e) was based on the entire jurisdictional offer, even though under the terms of the lease the lessee was entitled to payments from the lessor upon condemnation. Van Asten v. DOT, 214 Wis. 2d 135, 571 N.W.2d 420 (Ct. App. 1997), 96-1835.

32.28 AnnotationSub. (3) (b) entitles a successful condemnee to litigation expenses when the condemnor fails to negotiate in good faith before issuing the jurisdictional offer. Good faith negotiation prior to issuing a jurisdictional offer is not merely a technical obligation, but rather, is a fundamental, statutory requirement necessary to validly commence condemnation and confer jurisdiction on the condemnation commission and the courts. Warehouse II, LLC v. DOT, 2006 WI 62, 291 Wis. 2d 80, 715 N.W.2d 213, 03-2865.

32.28 AnnotationThis section does not expressly state that fees are only recoverable prior to abandonment or if the continuation of proceedings is not attributable to the condemnee. However, the circuit court in this case properly exercised its discretion in determining that the fees incurred after abandonment were not reasonable or necessary. D.S.G. Evergreen F.L.P. v. Town of Perry, 2007 WI App 115, 300 Wis. 2d 590, 731 N.W.2d 667, 06-0585.

32.28 AnnotationLitigation expenses shall be awarded to an owner under sub. (3) (d) if the owner conveys the property and receives a certificate of compensation pursuant to s. 32.06 (2a), with no jurisdictional offer issued under s. 32.06 (3); timely appeals to the circuit court, which refers the matter to the chairperson of the county condemnation commissioners; is awarded at least $700 and at least 15 percent more than the negotiated price under s. 32.06 (2a); and neither party appeals the commission’s award. Klemm v. American Transmission Co., 2011 WI 37, 333 Wis. 2d 580, 798 N.W.2d 223, 09-2784.

Notes of Decisions

Cited in 55 cases (1 in the last 5 years), 1980–2024 · leading case: Warehouse II, LLC v. State Dep't of Transp., 2006 WI 62 (Wis. 2006).

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Warehouse II, LLC v. State Dep't of Transp., 2006 WI 62 (Wis. 2006). · cites it 240× “This case requires us to decide whether Wis. Stat. § 32.28 (3)(b) (2003-04) [1] entitles a successful condemnee to litigation expenses when the basis for the circuit court ruling in its favor is that the condemnor failed to negotiate in good faith before issuing the…”

Klemm v. Am. Transmission Co., 2011 WI 37 (Wis. 2011). · cites it 106× “This review involves litigation expenses 2 under Wis. Stat. § 32.28 (3)(d) (2009-10) 3 in a condemnation proceeding between American Transmission Company, LLC (ATC) and Mark Klemm and Jeanne Klemm, the condemnees.”

Stand. Theatres, Inc. v. State, Dep't of Transp., 349 N.W.2d 661 (Wis. 1984). · cites it 47× “(Standard), appeals from a published decision of the court of appeals [1] which reversed and remanded the circuit court's award of attorney fees under sec. 32.28, Stats. The circuit court for Vilas county, Timothy L.”

Scott N. Waller v. Am. Transmission Co., LLC, 2013 WI 77 (Wis. 2013). · cites it 57× “06 (5)——the right-to- take statute——and, therefore, were entitled to litigation expenses under Wis. Stat. § 32.28 . ¶9 Finally, the Wallers were displaced persons under Wis.”

Vivid, Inc. v. Fiedler, 580 N.W.2d 644 (Wis. 1998). · cites it 26× “10 for the signs that the State removed and other costs and disbursements including attorney fees according to Wis. Stat. § 32.28 . ¶ 6. The circuit court granted the State's motion for summary judgment and dismissed Vivid's petition for an inverse condemnation proceeding.”

Vill. of Shorewood v. Steinberg, 496 N.W.2d 57 (Wis. 1993). · cites it 16× “" These cases (all decided before sec. 32.28, Stats., became effective) dealt with issues that arose before the condemnation commission had made an award.”

Maxey v. Redevelopment Auth. of Racine, 353 N.W.2d 812 (Wis. Ct. App. 1984). · cites it 19× “28(3), allowing the awarding of litigation expenses, contemplates one condemnee prevailing over another condemnee vis-a-vis a compensation award. Rather, it is sec.”

Narloch v. State, Dep't of Transp., 340 N.W.2d 542 (Wis. 1983). · cites it 20× “mage to property? (3) Before loss of existing access rights may be considered as an item of severance damages, 2 must a con- *423 demnee establish a foundation demonstrating a reasonable probability that prior to the condemnation, the department would have granted the condemnee…”

Calaway v. Brown Cnty., 553 N.W.2d 809 (Wis. Ct. App. 1996). · cites it 23× “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.”

Gottsacker Real Est. Co., Inc. v. State, 359 N.W.2d 164 (Wis. Ct. App. 1984). · cites it 20× “The State of Wisconsin appeals from that part of the judgment awarding litigation expenses, together with interest, under sec. 32.28, Stats., to Gottsacker Real Estate Company, Inc.”

Redevelopment Auth. of Green Bay v. Bee Frank, Inc., 355 N.W.2d 240 (Wis. 1984). · cites it 12× “At the onset we note that there is no language in sec. 32.28, Stats., cited in part below, 1 which would require the court to combine the condemnation commission’s award for a tenant’s immovable fixtures with the negotiated price for the land and buildings given to the owner in…”

E-L Enter., Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58 (Wis. 2010). · cites it 8× “10 , E-L is not entitled to its attorney fees and costs under Wis. Stat. § 32.28 (3). IV. CONCLUSION ¶ 41 In summary, we need not decide today the panoply of issues that relate to *426 an alleged taking of groundwater.”

Show all 55 citing cases →

— Wis. Stat. § 32.28(1) — 18 cases

Stand. Theatres, Inc. v. State, Dep't of Transp., 349 N.W.2d 661 (Wis. 1984). “(Standard), appeals from a published decision of the court of appeals [1] which reversed and remanded the circuit court's award of attorney fees under sec. 32.28, Stats. The circuit court for Vilas county, Timothy L.”

Warehouse II, LLC v. State Dep't of Transp., 2006 WI 62 (Wis. 2006). “This case requires us to decide whether Wis. Stat. § 32.28 (3)(b) (2003-04) [1] entitles a successful condemnee to litigation expenses when the basis for the circuit court ruling in its favor is that the condemnor failed to negotiate in good faith before issuing the…”

Maxey v. Redevelopment Auth. of Racine, 353 N.W.2d 812 (Wis. Ct. App. 1984). “28(3), allowing the awarding of litigation expenses, contemplates one condemnee prevailing over another condemnee vis-a-vis a compensation award. Rather, it is sec.”

Narloch v. State, Dep't of Transp., 340 N.W.2d 542 (Wis. 1983). “mage to property? (3) Before loss of existing access rights may be considered as an item of severance damages, 2 must a con- *423 demnee establish a foundation demonstrating a reasonable probability that prior to the condemnation, the department would have granted the condemnee…”

Milwaukee Rescue Mission, Inc. v. Redevelopment Auth. of the City of Milwaukee, 468 N.W.2d 663 (Wis. 1991).

— Wis. Stat. § 32.28(2) — 3 cases

Calaway v. Brown Cnty., 553 N.W.2d 809 (Wis. Ct. App. 1996). “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.”

Redevelopment Auth. of Green Bay v. Bee Frank, Inc., 355 N.W.2d 240 (Wis. 1984). “At the onset we note that there is no language in sec. 32.28, Stats., cited in part below, 1 which would require the court to combine the condemnation commission’s award for a tenant’s immovable fixtures with the negotiated price for the land and buildings given to the owner in…”

— Wis. Stat. § 32.28(3) — 21 cases

Klemm v. Am. Transmission Co., 2011 WI 37 (Wis. 2011). “This review involves litigation expenses 2 under Wis. Stat. § 32.28 (3)(d) (2009-10) 3 in a condemnation proceeding between American Transmission Company, LLC (ATC) and Mark Klemm and Jeanne Klemm, the condemnees.”

Gottsacker Real Est. Co., Inc. v. State, 359 N.W.2d 164 (Wis. Ct. App. 1984). “The State of Wisconsin appeals from that part of the judgment awarding litigation expenses, together with interest, under sec. 32.28, Stats., to Gottsacker Real Estate Company, Inc.”

Vill. of Shorewood v. Steinberg, 496 N.W.2d 57 (Wis. 1993). “" These cases (all decided before sec. 32.28, Stats., became effective) dealt with issues that arose before the condemnation commission had made an award.”

— Wis. Stat. § 32.28(3)(a) — 3 cases

Pelfresne v. Dane Cnty. Reg'l Airport, 521 N.W.2d 460 (Wis. Ct. App. 1994).

Joyce v. Sch. Dist. of Hudson, 487 N.W.2d 41 (Wis. Ct. App. 1992).

— Wis. Stat. § 32.28(3)(b) — 7 cases

Scott N. Waller v. Am. Transmission Co., LLC, 2013 WI 77 (Wis. 2013). “06 (5)——the right-to- take statute——and, therefore, were entitled to litigation expenses under Wis. Stat. § 32.28 . ¶9 Finally, the Wallers were displaced persons under Wis.”

W.H. Pugh Coal Co. v. State, 460 N.W.2d 787 (Wis. Ct. App. 1990).

Danielson v. City of Sun Prairie, 2000 WI App 227 (Wis. Ct. App. 2000).

— Wis. Stat. § 32.28(3)(c) — 2 cases

E-L Enter., Inc. v. Milwaukee Metro. Sewerage Dist., 2009 WI App 15 (Wis. Ct. App. 2008).

— Wis. Stat. § 32.28(3)(d) — 7 cases

Van Asten v. State Dep't of Transp., 571 N.W.2d 420 (Wis. Ct. App. 1997).

Dickie v. City of Tomah, 527 N.W.2d 697 (Wis. Ct. App. 1994).

— Wis. Stat. § 32.28(3)(e) — 3 cases

Milwaukee Rescue Mission, Inc. v. Redevelopment Auth. of the City of Milwaukee, 468 N.W.2d 663 (Wis. 1991).

Van Asten v. State Dep't of Transp., 571 N.W.2d 420 (Wis. Ct. App. 1997).

Vill. of Shorewood v. Steinberg, 480 N.W.2d 780 (Wis. Ct. App. 1992).

— Wis. Stat. § 32.28(3)(f) — 2 cases

Dickie v. City of Tomah, 527 N.W.2d 697 (Wis. Ct. App. 1994).

— Wis. Stat. § 32.28(B) — 1 case

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