COURT OF APPEALS 

DECISION 

DATED AND FILED

July 23, 2019 

Sheila T. Reiff 

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. 2018AP1646 Cir. Ct. No. 2015CV8884

STATE OF WISCONSIN IN COURT OF APPEALS 

DISTRICT I 

PRANKE HOLDING LLC, 

 PLAINTIFF-APPELLANT, 

V. 

STATE OF WISCONSIN DEPARTMENT OF TRANSPORTATION, 

 DEFENDANT-RESPONDENT. 

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

ELLEN R. BROSTROM, Judge. Affirmed. 

 Before Brash, P.J., Kessler and Dugan, JJ. 

¶1 BRASH, P.J. Pranke Holding, LLC (Pranke Holding) appeals an 

order of the trial court dismissing its claim against the State of Wisconsin 

Department of Transportation (DOT). Pranke Holding owns commercial property 

which was leased to Bravo Restaurants, Inc. (Bravo). The DOT acquired a portion 
No. 2018AP1646 

2 

of those leased premises in 2012 through its eminent domain powers. Bravo 

subsequently terminated its lease with Pranke Holding in March 2014, more than 

two years before the expiration date of the lease term. 

¶2 Pranke Holding filed the lawsuit underlying this appeal in October 

2015 against the DOT seeking rental losses. After a court trial held in May 2018, 

the trial court determined that Pranke Holding had failed to meet its burden of 

proof for its claimed rental losses, noting that some of Pranke Holding’s claimed 

losses were not compensable, and dismissed the case. Additionally, prior to the 

trial the court had granted partial summary judgment in favor of the DOT with 

regard to an amended claim for rental losses filed by Pranke Holding, finding that 

it was not timely filed. The court also rejected Pranke Holding’s motion for 

reconsideration on that ruling. 

¶3 Pranke Holding contends that the trial court erred in all of those

determinations. We conclude that the trial court did not err in holding that Pranke 

Holding failed to meet its burden of proof regarding its claim, and therefore we 

need not reach Pranke Holding’s other arguments. Accordingly, we affirm. 

BACKGROUND

¶4 Pranke Holding purchased the commercial property at issue here, 

located on West Bluemound Road in Wauwatosa, in 2003. At the time of the 

purchase, part of the property was leased to Bravo, which operated an Edwardo’s 

Natural Pizza restaurant on the premises. The lease term with Bravo had been 

extended through April 30, 2016. 

¶5 In November 2012, the DOT acquired a portion of the premises—

0.126 acres, comprised of a portion of the parking area and a landscaped area—for 
No. 2018AP1646 

3 

the Highway 100 Reconstruction Project (Project). The Project entailed closing 

one of the four access points to the premises. Pranke Holding was concerned 

about the negative impact on the property’s value with the closing of that access 

point, and met with the DOT to discuss possible alternatives; however, it was 

unsuccessful in finding an alternative to which the DOT would agree. Pranke 

Holding was compensated for the taking, including an amount allocated as

damages for the loss of the access point. Construction for the Project began in 

March 2013 and was completed by December 2013. 

¶6 In March 2014, Bravo gave Pranke Holding notice that it was 

terminating its lease of the premises due to the “eminent domain activities” related 

to the Project. Bravo cited a provision in the lease which permitted Bravo to void 

the lease in the event of condemnation proceedings of any portion of the 

premises—including the parking lot—if the taking causes “material interference” 

with Bravo’s business. 

¶7 Pranke Holding was unable to rent the premises after Bravo vacated 

them, and submitted a claim to the DOT for rental losses pursuant to WIS. STAT. 

§ 32.195(6) (2017-18).1 That statute allows for reimbursement to the property 

owner for “[r]easonable net rental losses” incurred as a result of a taking, as long 

as those losses (a) “are directly attributable to the public improvement project,” 

and (b) “are shown to exceed the normal rental or vacancy experience for similar 

properties in the area.” Id. Pranke Holding’s claim, filed on July 31, 2014, in the 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 
No. 2018AP1646 

4 

amount of $69,427.30, represented lost rents from January 1, 2014, to July 1, 

2014. 

¶8 The DOT denied the claim. It stated that its acquisition of a portion 

of the premises “did not result in the displacement” of Bravo or Pranke Holding, 

and therefore the losses were not considered “directly attributable” to the Project, 

citing the requirements of WIS. STAT. § 32.195(6). Pranke Holding subsequently 

submitted an amended rent loss claim on February 3, 2015, increasing the amount 

of its claim to $267,155.48, to include lost rents through April 30, 2016, the end of 

Bravo’s lease term. The DOT again denied the claim, stating that it was untimely 

pursuant to WIS. STAT. § 32.20, which requires such claims to be submitted within 

two years after the condemnor takes possession of the property. Additionally, the 

amended claim was also rejected for again failing to demonstrate that the losses 

were directly attributable to the Project. 

¶9 Pranke Holding then filed the underlying action against the DOT in 

October 2015. The DOT filed a motion for partial summary judgment with regard 

to the amount of Pranke Holding’s claim: it argued that Pranke Holding’s claim 

for rental losses should be “capped” at $69,427.30, the amount submitted in its 

timely claim. The trial court agreed. Pranke Holding moved for reconsideration, 

arguing that the DOT did not take physical possession of the property until it 

began construction in March 2013, and thus the amended rental loss claim filed in 

February 2015 was timely. The court denied the motion on the basis that this was 

a fact that Pranke Holding could have argued at the time the partial summary 

judgment motion was pending. 

¶10 A court trial was held in May 2018. The trial court determined that 

Pranke Holding had not satisfied either requirement for additional compensation 
No. 2018AP1646 

5 

as provided in WIS. STAT. § 32.195(6). The court cited several reasons for its 

determination, including Pranke Holding’s failure to establish a direct causal 

connection between the Project and Bravo terminating its lease. The court further 

found that the testimony of Pranke Holding’s expert was insufficient to 

substantiate Pranke Holding’s claim, noting the lack of specific information 

regarding vacancy rates or economic data for comparable properties in the area. 

¶11 As a result, the trial court dismissed Pranke Holding’s claims against 

the DOT. This appeal follows. 

DISCUSSION

¶12 As previously stated, we need only address Pranke Holding’s 

argument that the trial court erred in holding that Pranke Holding had not met its 

burden of proof in this case. Pranke Holding’s other arguments—that the trial 

court erred in granting partial summary judgment capping the amount of its 

damages, denying Pranke Holding’s motion for reconsideration on that ruling, and 

finding at trial that some of Pranke Holding’s claimed losses were not 

compensable—are irrelevant based on our conclusion regarding the issue of 

burden of proof. See Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 

326 Wis. 2d 300, 786 N.W.2d 15 (“Typically, an appellate court should decide 

cases on the narrowest possible grounds.... Issues that are not dispositive need not

be addressed.”). 

¶13 In our review of the trial court’s decision, its findings of fact will not 

be disturbed unless they are “clearly erroneous.” Royster-Clark, Inc. v. Olsen’s 

Mill, Inc., 2006 WI 46, ¶11, 290 Wis. 2d 264, 714 N.W.2d 530. However, the 

“application of those facts to the statute and interpretation of the statute are 

reviewed independently.” Winnebago Cty. v. Christopher S., 2016 WI 1, ¶50, 
No. 2018AP1646 

6 

366 Wis. 2d 1, 878 N.W.2d 109. Additionally, we will affirm the trial court’s 

correct conclusions even if our reasoning differs to some extent. See State v. 

Thames, 2005 WI App 101, ¶10, 281 Wis. 2d 772, 700 N.W.2d 285. 

¶14 Pranke Holding’s claim against the DOT for rental losses requires 

that Pranke Holding meet both requirements of WIS. STAT. § 32.195(6): 

demonstrating that the losses are “directly attributable” to the Project, and that 

those losses are greater than the normal vacancy rates for similar properties.2

¶15 Pranke Holding asserts that it presented sufficient evidence to prove 

the first requirement. Specifically, Pranke Holding calls attention to the appraisal 

report commissioned by the DOT as part of the condemnation process, which 

determined the amount of compensation owed to Pranke Holding for the taking. 

In that report, the appraiser stated that with the closing of the access point, which 

was “one of the two primary access points” for the premises, the remaining access 

points were “not reasonable for the [premises’] highest and best use as a 

convenience-oriented commercial redevelopment site.” Thus, a portion of Pranke 

Holding’s compensation for the taking was allocated as damages relating to the 

loss of access. Pranke Holding characterizes this as an “admission” on the part of 

 

2

 Pranke Holding asserts that once it made a prima facie case to establish the cause of its 

rental losses, the burden shifted to the DOT to prove that the taking did not cause the losses. In 

support of this assertion, Pranke Holding cites Brandt v. Brandt, 145 Wis. 2d 394, 408-09, 427 

N.W.2d 126 (Ct. App. 1988), a case regarding marital property division. 

The DOT contends that Pranke Holding has misstated the law, and that there is no case 

law that establishes a burden-shifting framework for condemnation damages. We found no case 

law supporting Pranke Holding’s assertion either, and Pranke Holding does not refute this 

argument in its reply brief. Therefore, Pranke Holding has conceded that point. See Charolais 

Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 

1979). 
No. 2018AP1646 

7 

the DOT that the premises “was no longer viable for a fast-casual restaurant 

tenan[t].” 

¶16 Pranke Holding also introduced into evidence the letter from Bravo 

indicating that it was terminating its lease of the premises due to the “eminent 

domain activities” related to the Project. Mike Pranke, a member of Pranke 

Holding, testified that prior to the Project, Bravo had been content to continue 

leasing the premises because it had twice exercised renewal options on the lease; 

however, with the interruption in business from the Project and the resulting 

limitation of access to the premises, it was his opinion that “[Bravo] could no 

longer make money or pay their rent,” and that was the reason that it ultimately 

terminated the lease. 

¶17 However, as the trial court noted, Pranke Holding provided no 

evidence that the reasons suggested by Mike Pranke were in fact the reasons 

Bravo terminated the lease. Pranke Holding called no witnesses from Bravo to 

testify as such, nor did it request from Bravo its business records of revenues 

before and after the Project as a means of establishing causation. Instead, Pranke 

Holding relied on the termination letter from Bravo. However, that letter was 

admitted only to establish the fact that Bravo had terminated the lease, not to 

prove the truth of the reason stated for terminating the lease; the trial court deemed 

that to be inadmissible hearsay.3 

¶18 Therefore, Pranke Holding has not proven a causal connection 

between the Project and Bravo’s termination of the lease. Without that 

 

3

 Pranke Holding does not challenge that hearsay ruling in this appeal. 
No. 2018AP1646 

8 

connection, Pranke Holding has not established that its rental losses are directly 

attributable to the Project, the first requirement under WIS. STAT. § 32.195(6). 

¶19 Furthermore, Pranke Holding also failed to satisfy the second 

requirement of the statute—that the losses “exceed the normal rental or vacancy 

experience for similar properties in the area.” WIS. STAT. § 32.195(6)(b). Pranke 

Holding enlisted the testimony of an expert, Max J. Rasansky, who has been a 

licensed real estate broker in this state for approximately forty-three years, and is 

currently employed by a national commercial real estate company as the managing 

director for Wisconsin. In his deposition taken a few weeks prior to the trial,4

Rasansky opined that the premises are located on a “prime commercial corner” 

and therefore “should be in high demand[.]” Rasansky stated that it is “normal” to 

have a vacancy in a commercial property “from time to time,” and that it may take 

up to six months to fill such a vacancy. He further noted that the annual vacancy 

rate in 2015 for properties similar to the premises in the same general location was 

ten percent. 

¶20 However, Rasansky acknowledged that he had not reviewed 

information relating to other properties in forming his opinion, and that he had no 

“specific statistics or vacancy rates for properties” in that general area during the 

relevant time frame. Rather, his opinion appears to have been primarily based on 

his driving in the vicinity of the premises and observing that there were “various 

strip shopping centers ... that are basically full.” 

 

4

 Rasansky had previously advised the parties that he would likely not be available at the 

time of the trial. 
No. 2018AP1646 

9 

¶21 “The weight and credibility to be given to the opinions of expert 

witnesses is ‘uniquely within the province of the fact finder.’” Bloomer Hous. 

Ltd. P’ship v. City of Bloomer, 2002 WI App 252, ¶12, 257 Wis. 2d 883, 653 

N.W.2d 309 (citation omitted). The trial court found Rasansky’s testimony to be 

unpersuasive, and that due to its lack of “some reliable, rational, scientific basis ... 

it carries little credibility.” We agree, and conclude that this evidence is not 

sufficient to show that Pranke Holding’s rental losses exceeded the normal 

vacancies experienced by similar properties in the area. See WIS. STAT.

§ 32.195(6)(b). 

¶22 In sum, WIS. STAT. § 32.195(6) requires proof of both of its 

requirements; Pranke Holding failed to satisfy either. As a result, Pranke 

Holding’s claim against the DOT for rental losses fails. Accordingly, we affirm 

the trial court’s dismissal of Pranke Holding’s claim. 

By the Court.—Order affirmed. 

 Not recommended for publication in the official reports.