KJS Amoco Inc. v. Wisconsin Department of Transportation

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 2, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2024AP1040 Cir. Ct. No. 2021CV757

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

KJS AMOCO INC.,

PLAINTIFF-APPELLANT,

K & D REALTY LLC,

PLAINTIFF,

V.

WISCONSIN DEPARTMENT OF TRANSPORTATION,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Kenosha County:
FRANK M. GAGLIARDI, Judge. Affirmed.

Before Donald, C.J., Colón, P.J., and Geenen, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP1040

¶1 PER CURIAM. KJS Amoco, Inc. (“KJS”) appeals from an order of
the circuit court granting summary judgment in favor of the Wisconsin Department
of Transportation (“DOT”). KJS argues that the DOT was not entitled to summary
judgment because KJS met the requirements for business replacement benefits1
under WIS. STAT. § 32.19(4m)(b) (2023-24) and WIS. ADMIN. CODE
§ Adm 92.90(1) (through Apr. 2026),2 and the DOT is estopped from denying KJS’s
business replacement benefits on the basis that KJS did not meet the relevant
statutory and regulatory deadlines.

¶2 We reject KJS’s arguments and conclude that KJS is ineligible for
business replacement benefits because it failed to rent or purchase a comparable
replacement business within two years of vacating the condemned property, and
KJS forfeited its estoppel claim. Accordingly, we affirm.

BACKGROUND

¶3 In August 2018, the DOT acquired by condemnation two parcels of
commercial real estate owned by K & D Realty LLC (“K & D”) for a highway
improvement project in Kenosha.3 K & D was the owner of the properties and a
landlord to KJS, a tenant on one of the parcels on which KJS operated a gas station,
car wash, and convenience store. On September 30, 2018, the DOT took possession
of the property it acquired from K & D, and KJS vacated the premises. Under the
relevant statutes and administrative regulations, KJS had until September 30, 2020,

1
Consistent with the parties and the relevant statutes and administrative regulations, we
use the terms “business replacement benefits/payments” and “relocation benefits/payments”
interchangeably.
2
All references to the Wisconsin Statutes are to the 2023-24 version. All references to
WIS. ADMIN. CODE § Adm are to the April 2026 register.
3
K & D is not a party to this appeal.

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to meet eligibility requirements for business replacement benefits and to file a claim
for those benefits.

¶4 During 2018, 2019, and 2020, K & D worked with personnel from the
DOT to identify and locate a replacement property on which KJS could operate a
replacement business. On August 12, 2020, KJS and K & D submitted a letter to
the DOT requesting an extension of their deadline to file a claim for business
replacement benefits pursuant to WIS. ADMIN. CODE § Adm 92.08(1). In that letter,
KJS and K & D represented that K & D was under contract to purchase a vacant lot
which was anticipated to close on September 15, 2020, and KJS anticipated
executing a contract with a construction company by the same date for the
construction of a replacement building on the vacant lot (the “Replacement C-
Store”). On September 9, 2020, the DOT granted KJS and K & D a “six-month
extension for the two-year relocation claim period[.]” Thus, the extended claim
period ended on March 31, 2021.

¶5 However, neither transaction referenced in KJS’s letter closed by the
anticipated time. Instead, multiple documents were executed on March 31,
2021: (1) K & D executed a land contract to purchase the vacant lot; (2) KJS
executed a lease with K & D for the vacant lot; (3) KJS signed an agreement with a
construction company for the construction of the Replacement C-Store; and (4) KJS
filed a claim with the DOT for relocation benefits under WIS. STAT. § 32.19(4m).

¶6 The DOT denied KJS’s claim, explaining that its “relocation program
provides for the reimbursement of costs for eligible items under WIS. STAT.
§ 32.19.” The DOT contended that KJS’s claim was “largely based on estimates for
work that has not even started.” Quoting § 32.19(4m)(a), the DOT further explained
that “[s]ince the relocation program provides reimbursements for a displacee who

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‘actually purchases’ a comparable replacement premises, reimbursements are not
provided before the work is completed, paid for by the displaced business, and
inspected by WisDOT.” The denial letter also stated that the proposed Replacement
C-Store was much larger than the one that KJS vacated: “the KJS Amoco subject
property was 1,580 square feet,” while “[t]he proposed replacement premises are a
dramatically upgraded new build of 4,400 square feet and nearly $11 million, which
well-exceeds the ‘comparable replacement business’ [Business Replacement
Payment] parameters stated in the law by any reasonable threshold.”

¶7 KJS and K & D filed a lawsuit seeking business replacement benefits
under WIS. STAT. § 32.19(4m)(b).4 Following the parties’ cross-motions for
summary judgment on KJS’s claim for business replacement benefits, the court
granted summary judgment to the DOT.

¶8 KJS appeals.

DISCUSSION

¶9 On appeal, KJS challenges the circuit court’s order granting summary
judgment to the DOT. “We review a grant of summary judgment independently,
applying the same methodology as the circuit court.” Christus Lutheran Church
of Appleton v. DOT, 2021 WI 30, ¶18, 396 Wis. 2d 302, 956 N.W.2d 837 (citation
omitted). “Summary judgment shall be granted where the record demonstrates ‘that

4
K & D alleged that it expended over $150,000 related to acquiring and improving
replacement properties, and it sought payment of $50,000 in relocation benefits. The circuit court
ultimately dismissed K & D from the case pursuant to a stipulation, and following K & D’s
stipulated dismissal, only KJS’s business replacement claim under WIS. STAT. § 32.19(4m)(b)
remained.

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No. 2024AP1040

there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’” Id. (quoting WIS. STAT. § 802.08(2)).

¶10 Our review requires us to interpret several statutes and administrative
regulations. “We interpret an administrative regulation using the rules of statutory
interpretation.” Piper v. Jones Dairy Farm, 2020 WI 28, ¶13, 390 Wis. 2d 762,
940 N.W.2d 701. “[S]tatutory 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 Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (citation omitted). “Statutory language is given its common, ordinary,
and accepted meaning, except that technical or specially-defined words or phrases
are given their technical or special definitional meaning.” Id. The interpretation of
statutes and administrative regulations present questions of law that we review de
novo. Christus Lutheran Church, 396 Wis. 2d 302, ¶19; Piper, 390 Wis. 2d 762,
¶13.

I. The DOT is entitled to summary judgment because KJS did not meet
the statutory and regulatory requirements for business replacement
benefits.

¶11 KJS argues that it met the statutory and regulatory requirements for
business replacement benefits. KJS asserts that the DOT’s September 9, 2020 letter
granted KJS an extension of time to satisfy the legal requirements to qualify for
benefits, and it actually purchased a comparable replacement business during the
extension period. KJS claims that it purchased the comparable replacement
business as of the date that it executed a contract to construct the Replacement C-
Store, and the DOT is estopped from arguing that KJS was required to purchase the
replacement business by September 30, 2020.

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No. 2024AP1040

¶12 The DOT responds that KJS was ineligible for business replacement
benefits because KJS did not timely rent or purchase a comparable replacement
business within two years after it vacated the acquired property. The DOT
maintains that it granted an extension to the period of time KJS had to file its claim
for business replacement benefits, but it did not and could not extend the period of
time KJS had to actually rent or purchase the replacement business. The DOT also
argues that KJS’s damages had not “fully materialized” at the time it filed its claim
for benefits as required by WIS. STAT. § 32.20, the proposed Replacement C-Store
was not comparable to the original displaced business, and KJS forfeited its estoppel
argument.

¶13 For the following reasons, we agree with the DOT and conclude that
KJS is not entitled to business replacement benefits under WIS. STAT.
§ 32.19(4m)(b).

A. KJS did not meet the statutory deadline to rent or purchase a
comparable replacement business.

¶14 KJS argues that, in the DOT’s September 9, 2020 letter to KJS and
K & D, the DOT extended the two-year statutory deadline to rent or purchase a
comparable replacement business from September 30, 2020 to March 31, 2021. KJS
claims that it met this extended deadline because K & D had purchased the vacant
lot as of March 31, 2021, KJS was leasing the lot, and KJS executed a construction
contract to build the Replacement C-Store. The DOT argues that the September 9,
2020 letter did not extend the deadline to actually rent or purchase a comparable
replacement business; it only extended the deadline to file a claim for business
replacement benefits. According to the DOT, KJS was still required to rent or
purchase a replacement business by September 30, 2020, which is the date two years
after KJS vacated the condemned property.

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No. 2024AP1040

¶15 We begin with the language of the relevant statutes and administrative
rules. Kalal, 271 Wis. 2d 633, ¶45. WISCONSIN STAT. § 32.19(4m)(b) describes
the requirements for the business replacement benefits being claimed by KJS. It
provides, in relevant part:

In addition to amounts otherwise authorized by this
subchapter, the condemnor shall make a payment to any
tenant displaced person[5] who has owned and occupied the
business operation, or owned the farm operation, for not less
than one year prior to initiation of negotiations for the
acquisition of the real property on which the business or farm
operation lies ... and who actually rents or purchases a
comparable replacement business or farm operation for the
displaced business or farm operation within 2 years after the
date the person vacates the acquired property.

Id. WISCONSIN ADMIN. CODE § Adm 92.90(1) also addresses the eligibility
requirements for business replacement benefits. Among other requirements that
mirror § 32.19(4m)(b), § Adm 92.90(1)(c) states that an agency shall make a
business replacement payment to a displaced business operation provided that “[t]he
person purchases or rents a replacement business or farm operation within 2 years
of the date the person vacates or receives final payment for the acquired property,
whichever is later.” The regulation further clarifies what qualifies as “purchasing”
a replacement business. Under § Adm 92.90(1)(d)3., a replacement business is
“purchased” when a person “[c]ontracts to, or constructs a building or structure for
a new business or farm operation on a site owned or acquired.”

¶16 While WIS. STAT. § 32.19 and WIS. ADMIN CODE § Adm 92.90(1)
describe the requirements to qualify for business replacement benefits, WIS. STAT.

5
A “tenant displaced person” is defined by statute as “a displaced person who owned the
business or farm operation conducted on the real property being acquired but leased or rented the
real property.” WIS. STAT. § 32.19(2)(i). There is no dispute that KJS is a “tenant displaced
person” in this case.

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No. 2024AP1040

§ 32.20 addresses when claims under § 32.19 must be filed. Section 32.20 requires
that all claims under § 32.19 be filed “after the damages upon which they are based
have fully materialized but not later than 2 years after the condemnor takes physical
possession” of the acquired property. WISCONSIN ADMIN. CODE § Adm 92.08(1)
also addresses the time for filing claims for business replacement payments. It states
that displaced tenants “may file a claim for payment following a move, but not later
than 2 years after” the date of displacement “unless extended by the agency for good
cause[.]”

¶17 We first discuss whether KJS rented or purchased a comparable
replacement business “within 2 years after the date” KJS vacated the property that
the DOT acquired from K & D. It is undisputed that the DOT took physical
possession of the property, and that KJS vacated the property, on September 30,
2018. This means that KJS had until September 30, 2020 to rent or purchase a
comparable replacement business.

¶18 KJS argues that the DOT’s September 9, 2020 letter “granted a written
extension of the two-year period to purchase and lease a comparable replacement
property[.]” The DOT argues that it only granted an extension for KJS to file its
claim for business replacement benefits; it did not grant an extension to meet the
eligibility requirements for receiving business replacement benefits. That is,
according to the DOT, KJS was granted a six-month extension to file its claim, but
it was still required to rent or purchase a comparable replacement business by
September 30, 2020 (i.e., two years after KJS vacated the acquired property).

¶19 We agree with the DOT. Under WIS. STAT. § 32.19(4m)(b), business
replacement benefits are “due only if [the displaced business] ‘actually rents or
purchases a comparable replacement business’ property within the time limits set

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No. 2024AP1040

out in the statute.” City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶37, 302
Wis. 2d 599, 734 N.W.2d 428 (quoting § 32.19(4m)(b)). Under both
§ 32.19(4m)(b) and WIS. ADMIN. CODE § Adm 92.90(1)(c), the rental or purchase
of the replacement business must occur within two years after the date of
displacement, and there is no language in those provisions that allows the agency to
extend the deadline. The only relevant provision that allows the agency to grant an
extension is WIS. ADMIN. CODE § Adm 92.08(1), and that regulation addresses when
claims need to be filed, not when eligibility requirements need to be met.

¶20 The relevant documents exchanged between the parties confirm that
the DOT was extending only the claim filing period and not the underlying deadline
to meet eligibility requirements. On August 12, 2020, when KJS requested “an
extension for the deadline for claims” “pursuant to Wis. Adm. Code
§ ADM 92.08(1),” it explicitly told the DOT that it anticipated that K & D’s
purchase of the vacant lot would close on September 15, 2020 and that KJS intended
to execute a construction contract for the Replacement C-Store on September 15,
2020. Thus, the DOT’s September 9, 2020 letter repeatedly refers to an extension
of the “relocation claim period,” and at no time states or implies that it was granting
an extension to the deadline to meet the eligibility requirements for relocation
benefits, requirements that KJS anticipated meeting before the September 30, 2020
deadline.

¶21 Accordingly, we conclude that KJS is not entitled to business
replacement benefits because it did not meet the statutory deadline to rent or
purchase a comparable replacement business.

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No. 2024AP1040

B. The DOT is not estopped from arguing that KJS was required to rent
or purchase a replacement business by September 30, 2020.

¶22 Based on the DOT’s September 9, 2020 letter, KJS argues that the
DOT should be estopped from arguing that it was required to rent or purchase a
replacement business by September 30, 2020. The DOT responds that KJS forfeited
this argument because it was raised for the first time in KJS’s reply brief in support
of its motion for partial summary judgment before the circuit court. Even if KJS
did not forfeit the argument, the DOT argues that estoppel does not apply.

¶23 We have recognized that an argument raised for the first time in a
reply brief before the circuit court does not necessarily result in forfeiture of that
argument on appeal. MPI Wright LLC v. Goodin Co., 2025 WI App 18, ¶¶55-56,
415 Wis. 2d 590, 19 N.W.3d 582; Ruenger v. Soodsma, 2005 WI App 79, ¶55, 281
Wis. 2d 228, 695 N.W.2d 840. When a party contends that the opposing party
forfeits an argument because of how the argument was raised in the circuit court,
we sometimes remand the cause for the circuit court to address, see Ruenger, 281
Wis. 2d 228, ¶55-56, but we need not do so here.

¶24 Our review of the record reveals that the circuit court considered and
rejected KJS’s estoppel argument, ultimately concluding that despite the
September 9, 2020 letter’s reference to a non-existent statute (i.e., “s. 32.30 Wis.
Stats.”), “there is an insufficient showing that other erroneous representations
contaminated the plaintiff’s understanding of its rights [.]” On appeal, KJS does not
rely on or reference the non-existent statute cited in the DOT’s letter. Instead, KJS
continues to characterize the DOT’s letter as having extended the deadline for KJS
to meet the eligibility requirements for business replacement benefits. We have
already rejected the premise that the DOT’s letter in fact extended the deadline for
KJS to meet the eligibility requirements. We further conclude that to the extent KJS

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relied on the DOT’s letter as having extended the deadline to meet eligibility
requirements for business replacement benefits, such reliance was unreasonable,
and for that reason, KJS’s estoppel argument fails.

¶25 “There are four elements of equitable estoppel: (1) action or non-
action; (2) on the part of one against whom estoppel is asserted; (3) which induces
reasonable reliance thereon by the other, either in action or non-action; (4) which is
to the relying party’s detriment.” Parsons v. Associated Banc-Corp, 2017 WI 37,
¶42, 374 Wis. 2d 513, 893 N.W.2d 212 (citation modified). We focus on the third
element: whether the DOT’s September 9, 2020 letter induced reasonable reliance
by KJS that its deadline to meet eligibility requirements for business replacement
benefits had been extended to March 31, 2021.

¶26 As we explained above, KJS’s August 12, 2020 letter requesting an
extension to file a claim for business replacement benefits refers only to WIS.
ADMIN. CODE § Adm 92.08(1), a regulation that addresses only the deadline for
filing claims for business replacement payments. KJS’s letter does not reference
any statute or administrative regulation setting the deadline for meeting eligibility
requirements to qualify for business replacement benefits, and in fact, KJS
represented that it was on track to meet the September 30, 2020 deadline to rent or
purchase a replacement business.

¶27 The DOT’s September 9, 2020 letter repeatedly refers to an extension
of the “relocation claim period” and does not state or imply that it was granting an
extension to the deadline to meet the eligibility requirements for relocation benefits.
We agree with the DOT that any reliance KJS might have placed on the proposition
that the DOT’s September 9, 2020 letter extended its deadline to meet the eligibility
requirements for business replacement payments was unreasonable based on the

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undisputed facts in the record. Therefore, we conclude that the DOT is not estopped
from arguing that KJS was required to rent or purchase a replacement business by
September 30, 2020.

CONCLUSION

¶28 For the foregoing reasons, we conclude that KJS is not entitled to
business replacement benefits, and the DOT is entitled to summary judgment.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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