Wisconsin Fuel, LLC 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.
May 20, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP2055 Cir. Ct. No. 2018CV2102

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

WISCONSIN FUEL, LLC,

PLAINTIFF-APPELLANT,

V.

WISCONSIN DEPARTMENT OF TRANSPORTATION,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, JJ.

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. 2019AP2055

¶1 PER CURIAM. Wisconsin Fuel, LLC, appeals an order granting
summary judgment to the Wisconsin Department of Transportation (DOT) and
dismissing Wisconsin Fuel’s claim pursuant to WIS. STAT. § 32.195(6) (2019-20).1
Applying controlling precedent, we affirm.

BACKGROUND

¶2 The following facts are undisputed. Wisconsin Fuel owns a parcel
of land on Dane County Trunk Highway N (the subject property). In 2005,
Wisconsin Fuel leased the subject property to a restaurant franchisee, and the
franchisee began operating an Arby’s restaurant on the premises. As the
expiration of the initial ten-year lease term neared, the franchisee assigned the
lease to ALB Restaurants, LLC, which took over the operation of the Arby’s
restaurant. ALB exercised a provision in the lease that renewed the lease for a
period of five years, from June 5, 2015, until June 14, 2020.

¶3 In June 2015, Wisconsin Fuel reached an access easement agreement
related to the subject property with adjacent property owner Golden Green
Properties, LLC.2 The access easement agreement was reached in anticipation of
changes to County Highway N as part of a highway improvement project (the
DOT project). The access easement agreement gave Wisconsin Fuel a legal right
of access to County Highway N by way of a driveway easement across the Golden
Green parcel. Wisconsin Fuel did not construct the access driveway.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Parveen “Paul” Bhardwaj is the sole owner of Golden Green, and he owns Wisconsin
Fuel together with his wife.

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¶4 In November 2016, DOT recorded an Award of Damages as part of
the DOT project, whereby DOT acquired a portion of the subject property,
including the right of direct access to Highway N via the two existing driveways
that together constituted the subject property’s only connection to public roads.
Construction then began on the DOT project, with continued use of the existing
driveways until DOT closed them in October 2017.

¶5 On August 30, 2017, while ALB was still operating under the
renewed 2005 lease, ALB entered into a new and separate lease with Wisconsin
Fuel, under which ALB would operate an Arby’s on the Golden Green parcel.3

¶6 On September 14, 2017, Wisconsin Fuel and ALB entered into an
agreement to terminate the original lease that the Arby’s franchisee had assigned
to ALB. The termination agreement states that ALB’s rent was “paid in full
through the closing date” of September 18, 2017, that “all terms of the lease have
been satisfied in good faith,” and that ALB is “released from any liability as of the
Arby’s close of business” on September 18, 2017. The agreement references the
new lease, stating the lease would begin in 2018.

¶7 As part of the DOT project, on October 25, 2017, DOT closed off
access to the two driveways leading to the subject property. A new Arby’s opened

3
The new lease named Wisconsin Fuel as landlord and ALB as tenant. At the hearing
on the parties’ motions for summary judgment, Wisconsin Fuel asserted that the 2017 lease was
“void” because the new building housing the Arby’s was ultimately built on Golden Green’s
property and therefore, according to Wisconsin Fuel, the new lease listed the wrong landlord.
The circuit court determined that the new lease was not relevant to the legal issue in this case,
namely, whether Wisconsin Fuel’s alleged rental losses are directly attributable to the DOT
project, although the court allowed Wisconsin Fuel to supplement the record with any
documentation pertaining to this issue, which the record does not indicate occurred.

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on the Golden Green parcel in November 2018, by which time the DOT project
had evidently been completed.

¶8 In August 2018, Wisconsin Fuel filed a complaint seeking
compensation for rental losses in the amount of $193,380 for the period from
September 15, 2017—the date that, according to the complaint, ALB “vacated the
subject property and stopped paying rent”—through the end of the original,
renewed lease on June 14, 2020, pursuant to WIS. STAT. § 32.195(6). Following a
hearing on the parties’ competing motions for summary judgment, the circuit court
granted DOT’s summary judgment motion and dismissed Wisconsin Fuel’s claim
for rental losses. Wisconsin Fuel appeals.

DISCUSSION

¶9 Wisconsin Fuel argues that the circuit court erred in granting
summary judgment in favor of DOT. For the reasons stated below, we affirm the
court’s decision, concluding that, based on the undisputed facts, Wisconsin Fuel
was not entitled to rental losses as a matter of law under Rotter v. Milwaukee
Expressway & Transportation Commission, 72 Wis. 2d 553, 241 N.W.2d 440
(1976).

I. Summary Judgment Standards and Standard of Review

¶10 “We review de novo a circuit court’s ruling on summary judgment,
and apply the same legal principles.” Chapman v. B.C. Ziegler & Co., 2013 WI
App 127, ¶2, 351 Wis. 2d 123, 839 N.W.2d 425. Summary judgment is
appropriate where “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a

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judgment as a matter of law.” WIS. STAT. § 802.08(2). The purpose of summary
judgment is “to avoid trials when there is nothing to try.” Tews v. NHI, LLC,
2010 WI 137, ¶42, 330 Wis. 2d 389, 793 N.W.2d 860.

¶11 Here, both parties moved for summary judgment, but we resolve this
appeal based on DOT’s motion and need not address Wisconsin Fuel’s motion.4

II. Rotter is Dispositive

¶12 In dismissing Wisconsin Fuel’s complaint, the circuit court agreed
with DOT that, based on the undisputed material facts, Wisconsin Fuel was not
entitled to rental losses under WIS. STAT. § 32.195(6). This provision states:

In addition to amounts otherwise authorized by this
subchapter, the condemnor shall reimburse the owner of
real property acquired for a project for all reasonable and
necessary expenses incurred for:

….

(6) Reasonable net rental losses when all of the
following are true:

(a) The losses are directly attributable to the public
improvement project.

(b) The losses are shown to exceed the normal
rental or vacancy experience for similar properties in the
area.

4
Although Wisconsin Fuel captioned its motion as a motion for summary judgment
rather than for partial summary judgment, at both the summary judgment hearing in the circuit
court and on appeal, Wisconsin Fuel has acknowledged that it moved for summary judgment only
on the issue of whether its rental losses were directly attributable to DOT’s project under WIS.
STAT. § 32.195(6)(a). Wisconsin Fuel stated at the summary judgment hearing that if the circuit
court granted its motion, the court was then required to schedule an evidentiary hearing to
determine the normal rental or vacancy experience for properties similar to the subject property,
pursuant to § 32.195(6)(b). Thus, Wisconsin Fuel sought only partial summary judgment.

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Sec. 32.195(6). Specifically, the court determined that, under Rotter, the rental
losses were not “directly attributable” to the DOT project under § 32.195(6)(a)
because Wisconsin Fuel chose to terminate the lease with ALB for its own
reasons.5

¶13 In Rotter, Milwaukee County acquired a building that the Rotters
owned and were leasing to a tenant. Rotter, 72 Wis. 2d at 556. By mutual
agreement of the Rotters and the tenant, in the approximately six months
immediately preceding the taking of the Rotters’ property, the tenant paid no rent.
Id. After the acquisition, the Rotters filed a claim for rental losses, based on the
tenant’s nonpayment of rent during those six months. Id. at 554-55. The then-
existing statute, WIS. STAT. § 32.19(4) (1965), allowed a property owner to
recover rental losses for the year before the taking of the property if, among other
requirements, the losses were “caused by” the taking.6 Id. at 556. Our supreme

5
The circuit court also concluded that, because Wisconsin Fuel failed to construct the
access driveway to Highway N through the Golden Green parcel as it had a right to do under the
access easement agreement, it was “Wisconsin Fuel, not the [DOT] project, [that] determined
whether the traveling public could reach the Arby’s restaurant upon the driveway closures.” On
appeal, DOT also relies on this alternative ground for summary judgment. Because we conclude
that under Rotter v. Milwaukee Expressway & Transportation Commission, 72 Wis. 2d 553, 241
N.W.2d 440 (1976), any rental losses were caused by Wisconsin Fuel’s relinquishment of rental
payments from ALB and were therefore not directly attributable to the DOT project, we need not
consider this additional rationale.
6
WISCONSIN STAT. § 32.19(4) (1965) provided compensation for

[n]et rental losses resulting from vacancies during the year
preceding the taking of the property, provided that: 1) such loss
is limited to the amount that exceeds the average annual rental
losses caused by vacancies during the first 4 years of the 5-year
period immediately preceding the taking; and 2) such rental loss
was caused by the proposed public land acquisition.

(continued)

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court upheld the circuit court’s dismissal of the Rotters’ complaint, concluding
that the rental losses were not caused by Milwaukee County’s acquisition of the
Rotters’ property, but were instead caused by the Rotters’ decision to release their
tenant from the lease:

Here, for their own reasons, the Rotters chose to
release [the tenant] from the obligation to pay rent under
the written lease.... Any rent loss sustained by the Rotters
under their lease with [the tenant] was, as the trial court
found, solely attributable to the Rotters having released [the
tenant] from its obligation to pay rent under the written
agreement. Such being the situation, the rent loss sustained
was not caused by the acquisition of the store building by
the county, but by the release of rental obligations agreed to
by the Rotters.

Id. at 557-58.

¶14 Similarly, in this case, it is undisputed that on September 14, 2017—
approximately six weeks before DOT’s closure of the driveways on October 25,
2017—Wisconsin Fuel agreed to terminate the lease with ALB and to release ALB
from any further rent obligation, effective September 18, 2017. This lease
termination occurred shortly after Wisconsin Fuel and ALB negotiated a new
lease, which began in November 2018. As the circuit court explained, “Wisconsin
Fuel was under no obligation to end the lease with ALB running until 2020. For
its own reasons, it chose to terminate the lease.” Thus, as in Rotter, Wisconsin

We note that in Luber v. Milwaukee County, 47 Wis. 2d 271, 283, 177 N.W.2d 380 (1970), our
supreme court determined that the one-year limitation on rental losses caused by condemnation
violated the just compensation clause of art. I, sec. 13, of the Wisconsin Constitution. The
legislature subsequently amended the statute, eliminating the one-year limitation and replacing
the phrase “caused by” with the phrase “directly attributable to.” See 1971 Wis. Laws, ch. 103,
§ 4 (repealing and recreating WIS. STAT. § 32.19(4)). There have been no substantive revisions to
the language of the statute since 1971, and soon thereafter, the statute was renumbered as WIS.
STAT. § 32.195(6). See 1973 Wis. Laws, ch. 192, § 4.

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Fuel’s alleged rental losses were “solely attributable to [Wisconsin Fuel] having
released [the tenant] from its obligation to pay rent under the written agreement,”
and were not attributable to the DOT project. Id. at 557.

¶15 Wisconsin Fuel makes various arguments as to why Rotter is
distinguishable and why the circuit court erred in dismissing its claim for rental
losses. However, as discussed below, these arguments are not persuasive.

III. Wisconsin Fuel’s Arguments

A. Rotter

¶16 Wisconsin Fuel advances several arguments as to why Rotter does
not apply to bar its claim for rental losses. First, Wisconsin Fuel asserts that the
statute as it existed during the pertinent time period in Rotter addressed
“condemnation blight” but the statute now addresses “relocation benefits.”
Wisconsin Fuel cites no authority supporting these characterizations of the
respective statutes. Further, Wisconsin Fuel develops no cogent argument
explaining how a distinction between condemnation blight and relocation benefits
would lead us to a different interpretation of the statute’s causation requirement.
We need not try to guess what Wisconsin Fuel intends to argue. See State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we need not
address undeveloped arguments).

¶17 Second, Wisconsin Fuel argues that Rotter is distinguishable
because the statute as it existed during the time period addressed in Rotter
contained a one-year limitation on rental losses that was eliminated in the version
of the statute governing this case. Not until its reply brief does Wisconsin Fuel
explain the view that this change represents a legislative intent to “greatly

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No. 2019AP2055

broaden” the rental losses that can be claimed against a condemnor. Even
assuming that we should address an argument that is not made clear until the reply
brief, the argument is unavailing because the critical issue here is causation of the
rental losses, not when the losses occurred. The statute at the time of Rotter stated
that rental losses are compensable only if they are “‘caused by the proposed public
land acquisition.’” Rotter, 72 Wis. 2d at 556 (quoting WIS. STAT. § 32.19(4)
(1965)). It now states that rental losses are compensable only if “[t]he losses are
directly attributable to the public improvement project.” WIS. STAT.
§ 32.195(6)(a). Wisconsin Fuel does not advance any basis for differentiating
these phrases and we see no meaningful difference between them. 7 Thus, just as
the rental losses in Rotter were not “caused by” the acquisition because the
landlord voluntarily relieved the tenant from rental payments, the rental losses
here are likewise not “directly attributable” to the DOT project for the same
reasons.

¶18 Wisconsin Fuel also argues that the release agreement in Rotter was
a “legally[]significant document because it released the tenant from a legal
obligation which the tenant would otherwise have had to pay under the lease.” In
contrast, according to Wisconsin Fuel, the release agreement in this case was of
“minor legal significance,” because the driveway barricades that DOT put in place

7
As DOT notes, “caused” means “to serve as a cause or occasion of,” and “attribute” or
“attributed” means “to explain (something) by indicating a cause.” See definitions at
https://www.merriam-webster.com/dictionary (last visited May 12, 2021). We further observe
that in Rotter, the court appears to have used “caused by” and “attributable to” interchangeably.
See Rotter, 72 Wis. 2d at 557-58 (“Any rent loss sustained by the Rotters ... was ... solely
attributable to the Rotters having released [the tenant] from its obligation to pay rent under the
written agreement. Such being the situation, the rent loss sustained was not caused by the
acquisition of the store building by the county, but by the release of rental obligations agreed to
by the Rotters.” (emphasis added)).

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No. 2019AP2055

on October 25, 2017, made the premises “untenantable” under WIS. STAT.
§ 704.07(4), relieving ALB of the obligation to pay rent.8 Therefore, Wisconsin
Fuel asserts, the release agreement released ALB from paying rent only from
approximately September 15,9 2017—which, according to the complaint, is when
ALB vacated the subject property and stopped paying rent—to October 25, 2017,
the date DOT barricaded and closed the driveways.

¶19 This argument is unavailing. As a preliminary matter, Wisconsin
Fuel has failed to show how WIS. STAT. § 704.07(4) is applicable. That provision,
which appears in the chapter of the Wisconsin statutes governing landlord-tenant
relationships, addresses untenantability caused by “damage by fire, water, or other
casualty or because of any condition hazardous to health,” or by a landlord’s
violation of various statutory duties that “materially affect the health or safety of
the tenant.” Sec. 704.07(4). None of these statutorily delineated events are at
issue here and the provision does not address untenantability as a result of
government action.

¶20 More significantly, in both Rotter and in this case, the landlords
released the tenants from the obligation to pay rent prior to any untenantability
that could have resulted from the government project. It is undisputed that, by the
time DOT barricaded the driveways, Wisconsin Fuel had already relinquished its

8
Wisconsin Fuel actually cites WIS. STAT. § “704.02(4).” However, because § 704.02
does not contain a subsection (4) and addresses severability of rental agreement provisions,
whereas WIS. STAT. § 704.07(4) addresses “untenantability,” we assume Wisconsin Fuel’s
citation contains a typographical error.
9
Although of no consequence to our decision, we note that there appears to be a
discrepancy between the September 15 rental termination date alleged in the complaint and the
September 18 rental termination date in the agreement terminating the lease.

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right to any further rental payments from ALB for the subject property and had
entered into a new lease with ALB for an Arby’s on a different parcel. Thus, as in
Rotter, the rental losses were not caused by or directly attributable to the DOT
project, but were instead caused by Wisconsin Fuel’s decision to relieve ALB
from paying rent.

¶21 In sum, we do not see a principled way to distinguish between Rotter
and the instant case, and we are bound by the decisions of our supreme court. See
Mount Horeb Cmty. Alert v. Village Bd., 2002 WI App 80, ¶6, 252 Wis. 2d 713,
643 N.W.2d 186; see also Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246
(1997) (“The supreme court is the only state court with the power to overrule,
modify or withdraw language from a previous supreme court case.”). Because
Wisconsin Fuel voluntarily agreed to terminate the then-active lease with ALB,
any alleged rental losses were not directly attributable to the DOT project under
Rotter. See Rotter, 72 Wis. 2d at 557-58.

B. Resolution of the Issue of Causation Through Summary Judgment

¶22 Wisconsin Fuel contends that the cause of its rental losses is a
question of fact that cannot be resolved by summary judgment. We are not
persuaded. First, we do not agree that the question of whether the losses are
directly attributable to the DOT project is merely a question of fact. Instead, the
inquiry involves the application of statutory language to the facts of the case,
which we review independently. See Estate of Genrich v. OHIC Ins. Co., 2009
WI 67, ¶10, 318 Wis. 2d 553, 769 N.W.2d 481; see also Emer’s Camper Corral,
LLC v. Alderman, 2020 WI 46, ¶16, 391 Wis. 2d 674, 943 N.W.2d 513 (“Whether
the circuit court applied the proper legal standard in analyzing causation is a
question of law we review de novo.”). Here, it is undisputed that Wisconsin Fuel

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No. 2019AP2055

released ALB from its rental obligations, and, as we have explained, under Rotter
rental losses are not directly attributable to a project when the property owner
voluntarily agrees to release the tenant from its obligation to pay rent.

¶23 Wisconsin Fuel cites no authority that supports its argument that
summary judgment procedures may not be applied to determine that a party has
not proven causation. Wisconsin Fuel quotes an excerpt from Johnson v.
Misericordia Community Hospital, 97 Wis. 2d 521, 560, 294 N.W.2d 501 (Ct.
App. 1980), and mentions an unpublished opinion from this court, Pranke
Holding v. DOT, No. 2018AP1646, unpublished slip op. (WI App July 23, 2019),
but does not explain how these cases support its position on this point. We need
not consider Wisconsin Fuel’s undeveloped arguments that rely on these cases.
See Pettit, 171 Wis. 2d at 646 (we need not address undeveloped arguments).
Moreover, we note that neither case supports the proposition that summary
judgment may not be granted on the issue of causation, even when, as here, the
material facts are undisputed, and controlling precedent decides the issue as a
matter of law.

C. Construction of WIS. STAT. § 32.195(6)(a)

¶24 Wisconsin Fuel argues that the circuit court misapplied the law by
failing to construe WIS. STAT. § 32.195(6)(a) liberally in favor of the property
owner. See Shepherd Legan Aldrian Ltd. v. Village of Shorewood, 182 Wis. 2d
472, 478, 513 N.W.2d 686 (Ct. App. 1994) (“Because the power of eminent
domain is ‘extraordinary,’ courts strictly construe the condemnor’s power, while
liberally construing provisions that favor the owner, including statutes that
regulate the compensation to be paid to the owner.” (quoting Standard Theatres,
Inc. v. DOT, 118 Wis. 2d 730, 742-43, 349 N.W.2d 661 (1984))).

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¶25 However, even applying WIS. STAT. § 32.195 in the manner
Wisconsin Fuel suggests, Rotter nevertheless controls and precludes a claim for
rental losses. Thus, Wisconsin Fuel’s statutory construction argument does not
assist it.

D. The ALB Affidavit

¶26 Wisconsin Fuel contends that the evidence it presented on summary
judgment suffices to show that its rental losses were “directly attributable” to the
DOT project within the meaning of WIS. STAT. § 32.195(6)(a) and that summary
judgment in favor of DOT was therefore in error. Specifically, Wisconsin Fuel
relies on an affidavit it submitted from ALB’s manager, Michael Breitfelder, who
averred that ALB closed the restaurant and moved out of the parcel owned by
Wisconsin Fuel because DOT “had closed both driveways which the property had
to County Trunk N, leaving the property with no access to a public road or street,
thereby making it impossible for the public to get to the restaurant.”

¶27 In so arguing, Wisconsin Fuel contrasts this case with Pranke
Holding, an unpublished decision in which this court upheld a circuit court’s
determination in favor of DOT on the causation issue, concluding that the landlord
failed to provide evidence as to why the subject lease was terminated. Pranke
Holding, No. 2018AP1646, ¶¶17-18. Wisconsin Fuel argues that, unlike the
claimant in Pranke Holding, Wisconsin Fuel provided evidence, namely, the
Breitfelder affidavit, showing that the DOT project was the reason that the tenant
moved off of the subject property.

¶28 We first observe that, to the extent that the Breitfelder affidavit
suggests that ALB physically closed the restaurant and moved from the subject
property after DOT’s October 25, 2017 closure of the two driveways, Wisconsin
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Fuel does not argue this on appeal. Indeed, Wisconsin Fuel’s own complaint and
in its briefing on appeal contradict this by stating that ALB vacated the property
and stopped paying rent on September 15, 2017, before the closure. Further, such
an assertion would also contradict the lease termination agreement entered into on
September 14, 2017, which shows an effective date of September 18, 2017.
Moreover, even accepting the general premise in the Breitfelder affidavit that the
anticipated DOT project was instrumental in causing ALB to leave the subject
property, Rotter nonetheless defeats Wisconsin Fuel’s claim for rental losses.
This is so because there is no dispute that, prior to DOT’s closure of the
driveways, Wisconsin Fuel voluntarily terminated its lease with ALB, thereby
relinquishing the rental payments it was entitled to under the lease. Breitfelder
does not aver differently. And under Rotter, these facts are sufficient to show as a
matter of law that the rental losses are not “directly attributable” to the DOT
project and therefore not compensable under WIS. STAT. § 32.195.10

¶29 We further note that Wisconsin Fuel’s reliance on Pranke Holding
is misplaced because that case did not involve a landlord voluntarily releasing a
tenant from rental payments, as occurred here and in Rotter. Instead, the tenant
10
In its reply brief, Wisconsin Fuel also refers to an affidavit from Wisconsin Fuel’s co-
owner, Bhardwaj, which states that “DOT’s highway improvement project was the sole cause of
Wisconsin Fuel, LLC entering into the above-described documents and it was the sole cause of
Wisconsin Fuel’s rent loss for the Arby’s restaurant that was located on the subject property.” As
Wisconsin Fuel acknowledges, this affidavit was submitted in support of Wisconsin Fuel’s
motion for reconsideration that was filed after the circuit court issued its oral decision dismissing
Wisconsin Fuel’s claim, but prior to the court’s written order. Notably, the record indicates that
the motion for reconsideration was subsequently withdrawn. It is therefore questionable whether
the Bhardwaj affidavit was considered by the circuit court or may be considered by this court on
appeal. However, even taking into account the Bhardwaj affidavit, the outcome of this case
would be no different. The Bhardwaj averments, to the extent that they do not simply state legal
conclusions, do not assist Wisconsin Fuel for the same reasons that the Breitfelder averments do
not assist it.

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unilaterally terminated its lease with the landlord after DOT acquired a portion of
the property that it was leasing to the tenant. Pranke Holding, No. 2018AP1646,
¶4.

¶30 In sum, the evidence that Wisconsin Fuel presented was not
sufficient to overcome the holding in Rotter, pursuant to which Wisconsin Fuel’s
claim under WIS. STAT. § 32.195(6) fails.

CONCLUSION

¶31 For the foregoing reasons, we affirm.

By the Court.—Order affirmed.

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

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