COURT OF APPEALS

DECISION

DATED AND FILED

December 13, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2023AP61 Cir. Ct. No. 2022CV96

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

UNITED AMERICA, LLC,

 PLAINTIFF-APPELLANT,

 V.

WISCONSIN DEPARTMENT OF TRANSPORTATION,

 DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Lincoln County: 

GALEN BAYNE-ALLISON, Judge. Affirmed. 

Before Neubauer, Grogan and Lazar, 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. 2023AP61

2

¶1 PER CURIAM. United America, LLC appeals from an order 

dismissing its complaint against the Wisconsin Department of Transportation 

(DOT) for failure to state a claim upon which relief may be granted. United 

America argues the circuit court erred in concluding that its claim against DOT 

under WIS. STAT. § 84.295 (2021-22)1failed as a matter of law because the statute 

does not create a private cause of action. For the reasons set forth below, we agree 

with the court’s conclusion and thus affirm the order dismissing United America’s 

complaint.

¶2 According to the complaint, United America owns commercial 

property at the intersection of U.S. Highway 51 and Northstar Road in Merrill, 

Wisconsin, on which it operates a gas station and convenience store. The 

intersection was formerly “at grade,” meaning that motorists travelling on U.S. 

Highway 51 could access the property by turning off the highway onto Northstar 

Road. United America commenced this action pursuant to WIS. STAT. § 84.295(5) 

and (6) against DOT seeking damages for diminished value of its property that it 

alleged resulted from DOT’s elimination of the at-grade intersection and 

construction of a bridge elevating Northstar Road over U.S. Highway 51.

2

 DOT 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.

2

 WISCONSIN STAT. § 84.295(5) provides as follows:

 DESIGNATING HIGHWAYS AS FREEWAYS OR EXPRESSWAYS. 

Where a state trunk highway is established on a new location 

which is not on or along an existing public highway, and the 

state trunk highway is designated as a freeway or expressway no 

right of access to the highway shall accrue to or vest in any 

abutting property owner. Where a state trunk highway is on or 

along any highway which is open and used for travel and is 

designated as a freeway or expressway, reasonable provision for 

public highway traffic service or access to abutting property 

(continued)
No. 2023AP61

3

decided not to build on- or off-ramps off of U.S. Highway 51 in connection with 

the bridge project, which forced highway motorists to take a longer and indirect 

route to United America’s gas station and convenience store. 

¶3 In an earlier case, United America sued DOT to recover 

compensation pursuant to WIS. STAT. § 32.18 for the diminished property value 

caused by the bridge project. See United America, LLC v. DOT, 2021 WI 44, 397 

Wis. 2d 42, 959 N.W.2d 317. The Wisconsin Supreme Court rejected United 

America’s claim under § 32.18. Id., ¶¶1, 22. After recognizing the common law 

 

shall be provided by means of frontage roads as a part of the 

freeway or expressway development, or the right of access to or 

crossing of the public highway shall be acquired on behalf of the 

state as a part of the freeway or expressway improvement 

project. The occupation or use of any part of an existing public 

highway is authorized for the construction of a freeway or 

expressway. The action of the department relative to 

designation, layout, location or relocation of any part of a 

freeway or expressway shall be conclusive.

Section 84.295(6) provides in part as follows:

 CONSTRUCTION OF GRADE SEPARATIONS AT INTERSECTIONS.

In the furtherance of the public interest and general welfare of 

the state and the traveling public in the development of freeways 

or expressways, the department is authorized and empowered to 

construct grade separations at intersections of any freeway or 

expressway with other public highways and railroads and to 

change and adjust the lines of public highways and if necessary 

combine, relocate or extend the same to adjust traffic service to 

grade separation structures. The entire cost of grade separations 

and relocations, alterations or extensions of local roads as so 

determined by the department shall be a part of the construction 

of and financed as a part of the cost of the freeway or 

expressway. The department may by agreement with a county or 

municipality or by order summarily vacate or relocate any town, 

county, city or village highway as part of the construction of a 

freeway or expressway but shall pay any damage legally payable 

under existing law to any property owner directly injured by the 

vacation or relocation of such street or highway.
No. 2023AP61

4

rule that “a landowner cannot recover for consequential injuries, including a 

diminution in property value, resulting from the exercise of state police power, 

such as changing a highway’s grade,” id., ¶11, the court concluded that § 32.18 

did not contain “clear, unambiguous, and peremptory language” necessary to 

abrogate that rule because it only permitted a claim for “damages to the lands,” not 

diminution in value. Id., ¶¶15-17 (citation omitted).

¶4 After the supreme court’s decision, United America filed this 

complaint against DOT, asserting a claim under WIS. STAT. § 84.295(5) and (6). 

DOT moved to dismiss the complaint for failure to state a claim upon which relief 

may be granted, arguing that neither subsection of the statute under which United 

America sued waived sovereign immunity.

3

 

¶5 The circuit court agreed with DOT that sovereign immunity 

precluded United America’s claim. In its oral ruling, the court concluded that 

WIS. STAT. § 84.295(5) and (6) did not create a private right of action, so United 

America had to, but could not, identify some other “existing law” that would allow 

its suit against DOT. Since these provisions did not create a standalone cause of 

action, the court dismissed United America’s complaint with prejudice.4 United 

America appeals. 

¶6 The circuit court’s ruling on the DOT’s motion to dismiss, and its

interpretation of WIS. STAT. § 84.295(5) and (6), present questions of law that we 

 

3

 DOT also argued that United America’s lawsuit was barred by the doctrine of claim 

preclusion. 

4

 Because the circuit court concluded that DOT was immune from suit, it declined to

address DOT’s argument regarding claim preclusion. 
No. 2023AP61

5

review independently of the circuit court and without any deference to its 

conclusions. See Evers v. Sullivan, 2000 WI App 144, ¶5, 237 Wis. 2d 759, 615 

N.W.2d 680.

¶7 “Sovereign immunity derives from article IV, section 27 of the 

Wisconsin Constitution.” Koshick v. State, 2005 WI App 232, ¶6, 287 Wis. 2d 

608, 706 N.W.2d 174. Article IV, section 27 of the Wisconsin Constitution 

provides, “[t]he legislature shall direct by law in what manner and in what courts 

suits may be brought against the state.” For the purpose of sovereign immunity, 

“[a] suit against a state agency [such as DOT] constitutes a suit against the State.” 

PRN Assocs. LLC v. DOA, 2009 WI 53, ¶51, 317 Wis. 2d 656, 766 N.W.2d 559. 

“If the legislature has not specifically consented to the suit, then sovereign 

immunity deprives the court of personal jurisdiction over the State, assuming that 

the defense has been properly raised.” Id. In other words, “[t]here must exist 

express legislative authorization in order for the state to be sued.” Kallembach v. 

State, 129 Wis. 2d 402, 408, 385 N.W.2d 215 (Ct. App. 1986) (citation omitted).

¶8 To determine whether the State expressly consented to be sued under 

WIS. STAT. § 84.295(5) and (6) for diminution of property value, we must examine 

those statutory provisions. “[T]he purpose of statutory interpretation is to 

determine what the statute means so that it may be given its full, proper, and 

intended effect.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, 

¶44, 271 Wis. 2d 633, 681 N.W.2d 110. “[S]tatutory interpretation ‘begins with 

the language of the statute.’” Id., ¶45 (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 context and structure of a statute are also important to the 

meaning of a statute. Id., ¶46. “[S]tatutory language is interpreted in the context 
No. 2023AP61

6

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. If, after this process, the statutory meaning is 

clear, “‘then there is no ambiguity, and the statute is applied according to this 

ascertainment of its meaning.’” Id. (citation omitted).

¶9 WISCONSIN STAT. § 84.295(5) provides that when the State uses its 

authority to designate highways as freeways or expressways, “reasonable 

provision for public highway traffic service or access to abutting property shall be 

provided by means of frontage roads as a part of the freeway or expressway 

development” or that “the right of access to or crossing of the public highway shall 

be acquired on behalf of the state.” No words in this statute establish a cause of 

action for damages. 

¶10 WISCONSIN STAT. § 84.295(6) addresses DOT’s authority to 

construct grade separations at intersections. This subsection provides that the 

DOT “shall pay any damage legally payable under existing law to any property 

owner directly injured by the vacation or relocation of such street or highway.” 

Id. This language makes clear that the grant of authority to the DOT to relocate

and vacate local streets and highways does not eliminate an existing cause of 

action when the State’s actions in doing so directly injure a property owner. 

Subsection 84.295(6) merely recognizes that to the extent other “existing law” 

provides a cause of action, an injured property owner may recover damages 

caused by the vacation or relocation. 

¶11 As the State correctly argues, these statutes are plain and 

unambiguous. While the statutes grant the State authority to act in the public 

interest, they do not create an independent cause of action for damages. Neither 
No. 2023AP61

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contains the “clear and definite language of consent to suit” necessary to waive

sovereign immunity. See Townsend v. Wisconsin Desert Horse Ass’n, 42 Wis. 2d 

414, 421, 167 N.W.2d 425 (1969).

¶12 As but one example of a clear waiver, the State cites WIS. STAT.

§ 88.87(2)(c), a contrast which is persuasive. Section 88.87(2)(c) provides that if 

the DOT “constructs and maintains a highway or railroad grade not in accordance 

with” § 88.87(2)(a),5any injured property owner may file a claim within three 

years, and if the claim is denied or not acted upon within ninety days, “the 

property owner may bring an action in inverse condemnation under [WIS. STAT.]

ch. 32 or sue for such other relief, other than damages, as may be just and 

equitable.” Section 88.87(2)(c) is an “existing law” that gives a cause of action for 

certain specified relief against DOT to a property owner injured as the direct result 

of a DOT highway construction project. 

 

5

 WISCONSIN STAT. § 88.87(2)(a) states as follows:

 Whenever any county, town, city, village, railroad company 

or the department of transportation has heretofore constructed 

and now maintains or hereafter constructs and maintains any 

highway or railroad grade in or across any marsh, lowland, 

natural depression, natural watercourse, natural or man-made 

channel or drainage course, it shall not impede the general flow 

of surface water or stream water in any unreasonable manner so 

as to cause either an unnecessary accumulation of waters 

flooding or water-soaking uplands or an unreasonable 

accumulation and discharge of surface waters flooding or watersoaking lowlands. All such highways and railroad grades shall 

be constructed with adequate ditches, culverts, and other 

facilities as may be feasible, consonant with sound engineering 

practices, to the end of maintaining as far as practicable the 

original flow lines of drainage. This paragraph does not apply to 

highways or railroad grades used to hold and retain water for 

cranberry or conservation management purposes.
No. 2023AP61

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¶13 Indeed, WIS. STAT. § 88.87(2) further illustrates our conclusion that 

WIS. STAT. § 84.295(5) and (6) do not provide an independent cause of action

because § 88.87(2)(c) expressly provides a specific procedure for making a claim

“with the appropriate governmental agency or railroad company” and then, if 

necessary, commencing an inverse condemnation action. This language 

constitutes an express waiver of sovereign immunity which is wholly absent from 

§ 84.295(5) and (6).

¶14 United America’s reliance on Seefeldt v. DOT, 113 Wis. 2d 212, 336 

N.W.2d 182 (Ct. App. 1983), is unavailing. In that case, DOT acted pursuant to 

WIS. STAT. § 84.295(5) in upgrading a highway, but the property owner’s claim 

was for a partial taking. Seefeldt, 113 Wis. 2d at 213-14. WISCONSIN STAT.

§ 32.09 permits a property owner to recover compensation and other damages in 

connection with a partial taking. See Hoffer Props., LLC v. DOT, 2016 WI 5, 

¶¶36, 40, 366 Wis. 2d 372, 874 N.W.2d 533 (recognizing that language in 

§ 84.295(5) required DOT to pay compensation pursuant to § 32.09, which were 

the statutes at issue in Seefeldt).

¶15 In sum, since WIS. STAT. § 84.295(5) and (6) do not provide for a 

separate right of action, and United America cites to no other law that permits it to 

seek damages based on the allegations in its complaint, the complaint fails to state 

a claim upon which relief may be granted, and the circuit court correctly dismissed 

the complaint with prejudice on that basis.6

 

6

 DOT also argues that claim preclusion applies to United America’s claims. We need 

not address this argument as our decision on sovereign immunity is dispositive. See Barrows v. 

American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An 

appellate court need not address every issue raised by the parties when one issue is dispositive.”).
No. 2023AP61

9

By the Court.—Order affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.