United Am., LLC v. Wis. Dep't of Transp.

• Decision Date: 28 April 2020
• Docket Number: Appeal No. 2018AP2383
• Citation: 944 N.W.2d 38,2020 WI App 24,392 Wis.2d 335
• Parties: UNITED AMERICA, LLC, Plaintiff-Respondent, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

392 Wis.2d 335

944 N.W.2d 38

2020 WI App 24

UNITED AMERICA, LLC,^† Plaintiff-Respondent,

v.WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.

Appeal No. 2018AP2383

Court of Appeals of Wisconsin.

Submitted on Briefs: November 5, 2019

Opinion Filed: April 28, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Maura FJ Whelan, assistant attorney general, and Joshua L. Kaul, attorney general.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joseph R. Cincotta, Milwaukee.

Before Stark, P.J., Hruz and Seidl, JJ.

SEIDL, J.

¶1 State law provides that when a governmental entity exercises its police power to change the grade of a street or highway, and it does so without also taking any land, an owner of land abutting the street or highway project may make "a claim for any damages to said lands occasioned by such change of grade." WIS. STAT. § 32.18 (2017-18).¹ The Wisconsin Department of Transportation (DOT) appeals a money judgment entered in favor of United America, LLC, which was premised on United America's argument that "any damages to said lands" encompasses nonstructural damages. More specifically, United America argued, and the circuit court agreed, that § 32.18 allows a qualifying landowner to recover damages for the reduction in a property's commercial value resulting from a change-of-grade project. The DOT argues this interpretation of § 32.18 is erroneous, and that only structural (i.e., physical) damage to lands is compensable under the statute.

¶2 We conclude, as a matter of first impression, that the phrase "any damages to said lands" in WIS. STAT. § 32.18 refers solely to structural damages. We therefore reverse the money judgment in favor of United America.

BACKGROUND

¶3 In 2004, United America purchased a parcel of land in Lincoln County ("the Property"). The Property directly abuts U.S. Highway 51 on its eastern boundary and Northstar Road on its northern boundary. ²

The Property has no means of directly accessing Highway 51; it has direct vehicular access only to Northstar Road.³

¶4 Until 2013, United America operated a gas station and convenience store on the Property. In May of that year, the DOT began a highway safety improvement project ("the Project") at the intersection of Highway 51 and Northstar Road.

¶5 Prior to the Project, Highway 51 and Northstar Road met at an at-grade intersection. This intersection allowed vehicular traffic to directly transition from one roadway to the other. After the Project was completed in October 2013, however, Northstar Road crossed Highway 51 at a grade-separated crossing (i.e., via an overpass).⁴ As a result, the direct flow of traffic from Highway 51 to Northstar Road ceased and vehicular access to the Property from Highway 51 became circuitous, at best.⁵ Consequently, United America lost approximately ninety percent of its business.

¶6 United America subsequently made an administrative claim for damages under WIS. STAT. § 32.18.⁶ After the DOT denied that claim, United America brought a civil claim in the circuit court for damages under the same statute.

¶7 Prior to trial, United America submitted a report from its expert appraiser, Michael Marous. Marous concluded that "as a result of the construction of the bypass and of the resultant loss of ready accessibility from [Highway 51]," the Property's value had been reduced by $528,500.

¶8 The DOT moved to exclude Marous’ report. It argued, in relevant part, that "damages based on a theory [of] lost profits should not be recoverable in a claim for damages under WIS. STAT. § 32.18." The circuit court denied this motion, and the matter proceeded to a bench trial, at which Marous testified consistent with his report.

¶9 The parties submitted briefs after trial, in which the DOT again argued that United America was not entitled to any damages under WIS. STAT. § 32.18.⁷ The circuit court rejected this argument, concluding that "[b]y using the word ‘any’ in defining damages, the enactment of § 32.18 appears to allow for comprehensive damages and does not restrict the type of damages that can be claimed by the select type of property owner to which § 32.18 is applicable." The court therefore entered judgment in favor of United America in the amount of $528,500, plus costs. The DOT now appeals.

STANDARD OF REVIEW

¶10 The central issue in this case is whether WIS. STAT. § 32.18 allows a qualifying landowner to recover nonstructural damages occasioned by a change-of-grade highway project. As such, this case presents an issue of statutory interpretation, which is a question of law that we review de novo. Otterstatter v. City of Watertown , 2017 WI App 76, ¶20, 378 Wis. 2d 697, 904 N.W.2d 396. The purpose of statutory interpretation is to discern the legislature's intent. Id. We will give statutory language its common, ordinary and accepted meaning, except technical or specially defined words will be given those respective meanings. Id. Further, we interpret statutory language in the context in which it is used, in relation to the language of surrounding or closely related statutes, and in a reasonable manner to avoid absurd or unreasonable results. Id.

DISCUSSION

¶11 As an initial matter, we note that when the State changes the grade of an existing controlled-access highway or freeway, it does so by exercising its police power. See WIS. STAT. §§ 84.25(3) and 84.295(6) ; see also Jantz v. DOT , 63 Wis. 2d 404, 409-10, 217 N.W.2d 266 (1974).⁸ "[I]njury to property resulting from the exercise of the police power of the state does not necessitate compensation." Surety Sav. & Loan Ass'n v. DOT , 54 Wis. 2d 438, 443, 195 N.W.2d 464 (1972). Even when compensation is not required, however, it may be "expressly sanctioned and provided for by act of the legislature." Stadler v. City of Milwaukee , 34 Wis. 98, 102 (1874).

¶12 The parties agree that our legislature has chosen to do just that (i.e., provide a means of compensation for qualifying landowners⁹ who suffer damages as a result of the State's exercise of its police power) through its enactment of WIS. STAT. § 32.18. They sharply dispute, however, the scope of damages made compensable under that statute.

¶13 The DOT, relying on the plain language of WIS. STAT. § 32.18 —which, again, provides that a qualifying landowner may only make a claim for "any damages to said lands occasioned by [a] change of grade"—argues that only physical or structural damage to land itself is compensable. Id. (emphasis added). United America responds that " ‘any damages’ means ‘any damages’ " and that "[t]he word ‘Any’ does not lend itself to being read and applied as [only] ‘any structural damages.’ " For the reasons that follow, we agree with the DOT.

¶14 To begin, United America's proposed interpretation asks us to completely ignore our legislature's use of the words "to said lands" in WIS. STAT. § 32.18.¹⁰ We are not at liberty to do so. Instead, we must "assume that the legislature used all the words in a statute for a reason." State v. Matasek , 2014 WI 27, ¶18, 353 Wis. 2d 601, 846 N.W.2d 811. Generally, every word that appears in a statute should contribute to the statute's construction. See id.

¶15 Turning to the actual language of WIS. STAT. § 32.18, and giving meaning to each word the legislature chose to use in the statute, we conclude that the only damages compensable under the statute are damages to land.¹¹ Stated differently, a qualifying landowner may only make a claim for structural or physical damages to his or her lands under § 32.18 ; the landowner cannot make a claim for any consequential damages such as lost profits or a diminution in property value caused by the change-of-grade project.

¶16 This conclusion follows because our legislature explicitly chose to make "any damages to said lands " compensable under the statute; it did not choose to make "any damages to said landowner " compensable. See WIS. STAT. § 32.18 (emphasis added). United America's interpretation would have us rewrite the statute to say the latter. We may not rewrite statutes; we must simply interpret them as they are written. See Rsidue, L.L.C. v. Michaud , 2006 WI App 164, ¶24, 295 Wis. 2d 585, 721 N.W.2d 718.

¶17 Lest there be any doubt about our reading of the plain meaning of WIS. STAT. § 32.18, we observe that three additional principles of statutory construction confirm our interpretation. First, we must presume when the legislature enacts a statute that it acts with knowledge of existing case law. Czapinski v. St. Francis Hosp., Inc. , 2000 WI 80, ¶22, 236 Wis. 2d 316, 613 N.W.2d 120.

¶18 Our legislature enacted WIS. STAT. § 32.18 in 1960. See 1960 Wis. Laws, ch. 639, § 1. This enactment came well after our supreme court's decision in Stadler , which interpreted a City of Milwaukee ordinance containing language substantially similar to § 32.18. Specifically, the ordinance interpreted by the Stadler court provided that

where the grade of [a] street has once been established and is afterwards changed, "all damages, costs and charges arising therefrom shall be paid by the city to the owner of any lot or parcel of land or tenement, which may be affected or injured in consequence of the alteration of such grade."

Stadler , 34 Wis. at 101 (citation omitted; emphasis added).

¶19 The plaintiffs in Stadler brought their claim under this ordinance in an effort to recover profits lost due to the temporary shutdown of their mill. Id. This shutdown undisputedly was caused by a change-of-grade project the city completed on the street abutting the land where the mill was located. Id.

¶20 Our supreme court held that the ordinance at issue did not authorize the recovery of lost profits caused by the change-of-grade project. Id. at 103-04. The court reasoned:

Now it seems to us that this is a just and fair commentary on the provisions of [the ordinance], which appears to have been very carefully and guardedly drawn to accomplish the identical results arrived

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