DSG Evergreen Family Limited Partnership v. Town of Perry

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.
March 28, 2024
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. 2023AP1660 Cir. Ct. No. 2015CV65

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

DSG EVERGREEN FAMILY LIMITED PARTNERSHIP,

PLAINTIFF-RESPONDENT,

V.

TOWN OF PERRY,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
MARIO WHITE, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Taylor, 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. 2023AP1660

¶1 PER CURIAM. This case concerns the interpretation and
application of language in a condemnation petition (“the petition”) pursuant to
which the Town of Perry (the “Town”) ultimately acquired property from DSG
Evergreen Family Limited Partnership (“DSG”) by eminent domain to create a
public park. The language provides that the Town will replace an existing field
road (the “old road”) that is on the acquired property with a new field road (the
“new road”), which would afford access to DSG property, and further provides
that the new road “will be built to the same construction standards as the existing
field road.” The circuit court concluded that this language requires the Town to
build an “in-kind road,” which DSG can use “for the same functions as [it] used
the” old road, in light of the new road’s different location and topography and the
additional use of the new road for the park. The court also made findings
specifying the new road standards to serve those functions.

¶2 On appeal, the Town argues that “the same construction standards
as” means the specifications set forth in the Town and Dane County ordinances
that applied to the old road, including particularly the Town driveway ordinance.
In the alternative, the Town argues that three of the circuit court’s findings
specifying standards of an “in-kind road” are clearly erroneous.

¶3 We conclude that the disputed language in the petition is ambiguous
and, consistent with controlling case law, we construe the language against the
Town and in favor of the interpretation of the circuit court. We conclude that this
interpretation, which favors DSG’s position on appeal, is a reasonable one. Under
this interpretation, the petition requires that the new road be built with the same
physical characteristics as the old road, but modified so as to preserve what had
been DSG’s prior use of the old road for agricultural and personal purposes, taking
into account the changes in the new road’s location and topography and the

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additional public use of the new road for the park. We further conclude that the
circuit court’s three specifications challenged by the Town, concerning the width
of the new road, the width of the apron where the new road connects to the county
road, and the construction of stormwater management facilities, are not clearly
erroneous. Accordingly, we affirm.

BACKGROUND

¶4 This appeal follows extensive related litigation between the Town
and DSG over a number of years, reflected in numerous court opinions. Most
pertinent here is the following. In 2006, the Town filed a Petition for
Condemnation Proceedings to acquire 12.13 of approximately 92 acres of land
owned by DSG in order to establish the Hauge Historic District Park. In 2008, the
Town accomplished the acquisition pursuant to an Award of Compensation that
contains the same language at issue as the petition.

¶5 The 12.13 acres includes the old road, which DSG used to access its
land for primarily agricultural purposes and for “a future residence and farm
building.” As to the old road, the petition provides as follows, with emphasis now
on a key sentence:

The Town will replace the existing field road on the 12.13
acre parcel to be acquired with a new field road from
Highway Z along the northern boundary of the Hague
Church Park boundary to the western boundary of the
proposed Park in order to provide access to the Owner’s
other lands in the Town of Perry and for park-related
purposes …. This field road will be built to the same
construction standards as the existing field road.

As described by this provision, the property to be acquired by the Town includes
the old road that afforded access to DSG’s property. The provision indicates that
the Town will replace the old road with a new road in a different location, to

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afford access to the DSG property remaining after the acquisition, as well as to
afford public access to the park.

¶6 The Town completed construction of the new road in 2010. The
Town subsequently adopted a resolution declaring the road open for “‘the benefit
of the public, adjacent property owners and for park related purposes.’” DSG
Evergreen Fam. Ltd. P’ship v. Town of Perry, 2020 WI 23, ¶10, 390 Wis. 2d
533, 939 N.W.2d 564.

¶7 In 2015, DSG filed a complaint against the Town for declaratory
judgment or damages, alleging that the new road differs from the old road in
several respects contrary to the requirement in the petition that the new road “be
built to the same construction standards as” the old road. In 2017, the circuit court
dismissed the complaint as barred by claim preclusion, and this court affirmed.1
DSG Evergreen Fam. Ltd. P’ship v. Town of Perry, No. 2017AP2352,
unpublished slip. op. (WI App Dec. 20, 2018). Our supreme court reversed,
concluding that prior litigation between the parties does not preclude DSG’s claim
regarding the specific meaning of the disputed language in the petition. DSG
Evergreen, 390 Wis. 2d 533, ¶19. The supreme court remanded to the circuit
court to determine the meaning of “the same construction standards as.” Id.

¶8 On remand, the circuit court concluded that the language of the
petition unambiguously requires that the Town provide DSG with “an in-kind
road,” and held an evidentiary hearing to determine the specific standards for “an
in-kind road.” In a written order following the hearing, the court found that the

1
The Honorable Richard G. Niess entered the dismissal order.

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No. 2023AP1660

new road “cannot exactly match” the physical characteristics of the old road
because the new road is in a different location with a different topography and
serves both the park as well as DSG. The court found that DSG used the old road
for primarily agricultural purposes, and determined that DSG should be able to use
the new road for the same agricultural and personal purposes as it used the old
road.

¶9 The circuit court found that the parties had stipulated in the course of
this litigation to the following: (1) the new road will be widened to 21 feet; (2) the
maximum slope of the new road will be reduced to 8.29%; (3) the Town will
construct at least one turn-out; (4) the Town will construct one turn-around area at
the end of the new road; and (5) if these changes result in the new road exceeding
20,000 square feet of impervious surfaces, the Town will construct stormwater
management facilities as required by the Dane County stormwater ordinance.

¶10 Based on the evidence presented at the hearing and the parties’
stipulations, the circuit court ordered that the Town: (1) widen the new road for its
entire length “to an average of 21 feet”; (2) decrease the slope of the new road to a
maximum of 8.29%; (3) construct at least one turn-out at least 70 feet long to
accommodate emergency vehicles and permit vehicles, specifically DSG’s
agricultural vehicles, to pass one another; (4) construct a turn-around area at least
120 feet across; (5) install stormwater management facilities, as required by the
Dane County stormwater ordinance, if the new road’s impervious surface is
18,000 square feet or more; (6) construct culverts of a type and shape as agreed to
by the parties; and (7) widen the apron (where the new road and the county road
meet) to accommodate the agricultural vehicles currently used to farm the DSG
property.

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¶11 The Town appeals.

DISCUSSION

¶12 The Town argues that the circuit court erroneously interpreted the
language “the same construction standards as” in the petition. In the alternative,
the Town argues that, under the court’s interpretation, three of the court’s
specifications of the standards are clearly erroneous. We address each issue in
turn.

I. Interpretation of “the same construction standards as.”

¶13 We review the interpretation of a contract de novo. Ford Motor Co.
v. Lyons, 137 Wis. 2d 397, 460, 405 N.W.2d 354 (Ct. App. 1987). “The general
rule as to construction of contracts is that the meaning of particular provisions in
the contract is to be ascertained with reference to the contract as a whole.” MS
Real Est. Holdings, LLC v. Donald P. Fox Fam. Tr., 2015 WI 49, ¶38, 362
Wis. 2d 258, 864 N.W.2d 83. We interpret the language of a contract “according
to its plain or ordinary meaning, … consistent with ‘what a reasonable person
would understand the words to mean under the circumstances.’” Id., ¶37 (quoted
source omitted). In other words, “[w]e interpret contracts to give them common
sense and realistic meaning.” Id., ¶38 (internal quotation marks and quoted source
omitted). “A dictionary may be utilized to guide the common, ordinary meaning
of words.” Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶10, 315 Wis. 2d 350,
760 N.W.2d 156.

¶14 If a contract provision is unambiguous, meaning that it is
“susceptible of just one reasonable interpretation,” we will construe it consistent
with that unambiguous meaning. Town Bank v. City Real Est. Dev., LLC, 2010

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WI 134, ¶33, 330 Wis. 2d 340, 793 N.W.2d 476. If a contract provision is
ambiguous, we will construe the provision against the drafting party. Maryland
Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶23, 326 Wis. 2d 300, 786 N.W.2d 15;
see also Standard Theatres, Inc. v. State, 118 Wis. 2d 730, 741-42, 349 N.W.2d
661 (1984) (stating that, because the exercise of eminent domain is an
“extraordinary power,” ambiguous language in a condemnation proceeding should
be strictly construed against the drafter). Whether a contract is ambiguous is a
question of law. Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653 (Ct.
App. 1990).

Analysis

¶15 To repeat, the petition provides that the Town will replace the old
road with a new road at a different location, and that, “[t]his field road will be built
to the same construction standards as the existing field road.”

¶16 The petition does not define the phrase “the same construction
standards as” or any term within that phrase. We present the following
representative dictionary definitions of these commonly used words. “Same”
means “identical.” See Same, Dictionary.com, https://www.dictionary.com
/browse/same (last visited March 20, 2024). “Construction” means: “the way in
which something is built or put together.” THE AMERICAN HERITAGE COLLEGE
DICTIONARY, (3rd ed. 1993); see also Construction, Dictionary.com,
https://www.dictionary.com/browse/construction (defining “construction” as “the
way in which a thing is constructed”) (last visited March 20, 2024). “Standard”
means “something considered by an authority or by general consent as a basis of
comparison.” Standard, Dictionary.com, https://www.dictionary.com
/browse/standard (last visited March 20, 2024); see also BLACK’S LAW

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DICTIONARY (6th ed. 1991) (defining “standard” as “[a] type, model, or
combination of elements accepted as correct or perfect”).

¶17 Consistent with these definitions, one reasonable interpretation of
the disputed language would read “the same construction standards as” as
referring to the specifications identical to those that applied to the old road as
designated by a regulatory or governmental authority in a rule, ordinance, or
statute. In other words, the petition requires the Town to build the new road so as
to meet the specifications mandated by the Town and Dane County ordinances that
applied to the old road when it was constructed.2 The Town contends that this is
the proper interpretation. However, as we next explain, this is not the only
reasonable interpretation of the disputed language.

¶18 A second reasonable interpretation would read “the same
construction standards as” as referring to the way that the old road was built.
Under this interpretation, the way the old was built would serve as the basis of
comparison for the way that the new road should be built, with the result that the
new road would have the identical physical characteristics as the old road.

¶19 A third reasonable interpretation would read “the same construction
standards as” as referring to the functional equivalent of the old road, using the old
road as a model, so that the new road can be used in the same way the old road
was used. Under this interpretation, the physical characteristics of the old road
would be the starting point, but the new road would represent a modification under
which DSG’s prior uses of the old road would be preserved, taking into account

2
The old road was constructed pursuant to access permits obtained by DSG in 2000 and
2001.

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No. 2023AP1660

the differences in the new road’s location and topography and the new road’s
additional purpose of serving the park.

¶20 The circuit court appeared to adopt this third interpretation. It
determined that the language requires “an in-kind road,” using as a starting point
the same physical characteristics as the old road (by requiring that the new road
have the same width, slope, and culverts as the old road), but modified so as to
allow DSG to use the new road for the same primarily agricultural purposes,
including the use of the road by agricultural vehicles (by requiring a larger apron)
and to accommodate the additional uses related to the park (by requiring the turn-
out and turn-around area).

¶21 Because “the same construction standards as” is “susceptible to more
than one reasonable interpretation,” we conclude that the language in the petition
is ambiguous. See Town Bank, 330 Wis. 2d 340, ¶33. Accordingly, we interpret
the language against the Town as the drafter, and in favor of the interpretation
adopted by the circuit court, which is supported by DSG on appeal and which we
conclude is one reasonable interpretation. Under this interpretation, the petition
requires that the Town build an “in-kind road,” with the same physical
characteristics as the old road, but modified so as to preserve DSG’s prior use of
the road for agricultural and personal purposes based on the changes in the new
road’s location and topography and the additional use of the new road for the park.

¶22 The Town counters that “the same construction standards as” is not
ambiguous. Specifically, the Town argues that this language unambiguously
refers to the requirements set forth in Town and Dane County ordinances,
particularly the Town driveway ordinance, that applied to the old road when it was

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constructed pursuant to the 2000 and 2001 access permits. This argument fails for
at least the following reasons.

¶23 First, the Town asserts that “construction standards” is a technical
term that, “in the context of road construction,” “is understood by professionals to
mean governmental standards,” specifically, the Town driveway ordinance. See
Topolski v. Topolski, 2011 WI 59, ¶39, 335 Wis. 2d 327, 802 N.W.2d 482
(discussing the interpretation of contractual terms “in the profession or business to
which they relate”). However, the Town points to nothing within the four corners
of the petition that supports the notion that it is a road construction agreement
between professionals who would understand the phrase “construction standards”
to refer to the Town driveway ordinance. Rather, it is a petition by a municipality
to commence a condemnation proceeding against a private property owner, in
which the municipality promises to replace an existing field road. Moreover, the
Town’s interpretation would require replacing “same construction standards as”
with “same construction standards contained in ordinances that applied to,” and
we cannot add words that the drafter did not use in order to determine that contract
language is unambiguous. See North Gate Corp. v. National Food Stores, Inc.,
30 Wis. 2d 317, 323, 140 N.W.2d 744 (1966) (“We cannot ignore the [drafter]’s
failure to use an obvious term, especially where it is the [drafter] who is urging a
tenuous interpretation of a term in order to make it applicable to a situation which
would clearly have been covered if the obvious term had been chosen.”);
Milwaukee Police Supervisors Org. v. City of Milwaukee, 2023 WI 20, ¶24, 406
Wis. 2d 279, 986 N.W.2d 801 (“‘It must be borne in mind that the office of
judicial construction is not to make contracts or to reform them, but to determine
what the parties contracted to do; not necessarily what they intended to agree to,

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but what, in a legal sense, they did agree to, as evidenced by the language they
saw fit to use.’”) (quoted source omitted).

¶24 The Town next argues that it is not reasonable to interpret
“standards” as referring to “physical characteristics” because this interpretation
would render “construction standards” superfluous. That is, this interpretation
would read the petition to require only that the new road be built the same as the
old road. To prevent that result, according to the Town, “the same construction
standards” must mean the specifications mandated by ordinance, while “as the
existing field road” must mean the physical road to which the ordinance
specifications applied. However, under the second reasonable interpretation
posited above, it is precisely the concept of “physical characteristics” that could
reasonably be embraced by the term “construction standards” to identify the
aspects of the old road that the Town had to replicate. Alternatively, under the
third reasonable interpretation posited above, consistent with our review of the
dictionary definitions, “the same construction standards as” could reasonably
mean that the old road serves as a “model” in terms of both physical
characteristics and usage that the Town was obligated to replicate. In other words,
when considered together, the phrase “the same construction standards” and the
phrase “the existing field road,” could reasonably be interpreted as requiring that
the physical characteristics of the old road set the construction standards for the
new road as a point of comparison or model, modified as necessary to
accommodate changes in the new road’s location, topography, and usage.

¶25 Finally on this issue, the Town argues that certain language in
engineering reports prepared by DSG’s consultants as part of this condemnation
proceeding, along with statements by DSG in correspondence and allegations by
DSG in the complaint, support its argument that “the same construction standards”

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in the petition unambiguously means ordinance standards. However, the Town
does not cite to legal authority to support its resort to extrinsic evidence to
establish that the provision is unambiguous in these circumstances. See Industrial
Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318
Wis. 2d 148, 769 N.W.2d 82 (“Arguments unsupported by legal authority will not
be considered, and we will not abandon our neutrality to develop arguments.”); c.f.
Town Bank, 330 Wis. 2d 340, ¶33 (“Only when the contract is ambiguous,
meaning it is susceptible to more than one reasonable interpretation, may the court
look beyond the face of the contract and consider extrinsic evidence to resolve the
parties’ intent.”).

¶26 In sum, the Town fails to show that the disputed language in the
petition unambiguously refers to the standards in the Town driveway ordinance, or
any other ordinances, that applied to the old road.

II. The circuit court’s findings specifying the standards of “an in-kind
road”

¶27 The Town argues, in the alternative, that three of the circuit court’s
specifications of the standards of “an in-kind road” are essentially findings of fact
and that as findings of fact they are clearly erroneous. We first state the standard
of review and then address each challenged specification in turn.

¶28 “We affirm factual determinations unless they are clearly
erroneous.” Steinbach v. Green Lake Sanitary Dist., 2006 WI 63, ¶10, 291
Wis. 2d 11, 715 N.W.2d 195. “A circuit court’s findings of fact are clearly
erroneous when the finding is against the great weight and clear preponderance of
the evidence.” Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶12, 290
Wis. 2d 264, 714 N.W.2d 530.

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¶29 The Town argues that the circuit court erroneously ordered that the
entire length of new road must be an average of 21 feet wide. The Town argues
that only the first 485 feet of the new road should be 21 feet wide, because the new
road is 835 feet long while the old road was 485 feet long. The court rejected this
argument based on the following findings: the Town constructed a longer
replacement road, in part, to allow DSG to access its property from the county
road; a narrower road would not provide that access; and in the petition the Town
did not describe how long the replacement road would need to be in order to
provide that access. The Town fails to show that any of these findings are clearly
erroneous. Instead, the Town argues that, if the petition requires only that the new
road meet the physical characteristics of the old road, then the new road need not
be any minimum width at all beyond the length of the old road. However, this
argument disregards both the court’s finding that a narrower road will not preserve
DSG’s access, and the court’s interpretation that the old road’s physical
characteristics need to be modified as required by the new road’s different location
and topography and its dual purpose to serve the park while also preserving DSG’s
use of the road to access its property for agricultural and personal purposes.

¶30 The Town also argues that the circuit court erroneously ordered that
the new road’s apron—the place where the new road meets the county road—must
be widened to accommodate the agricultural equipment used to farm DSG’s
property. As with the new road’s width, the Town argues that it need only
replicate the size of the old road’s apron so that the new road has the same
physical characteristics as the old road. And, as with the new road’s width, this
argument ignores the court’s findings supporting the specification of a wider
apron, which were as follows.

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¶31 The circuit court found based on all of the relevant evidence that,
given the new location as to where the new road intersects the county road, an
apron wider than was sufficient for DSG’s use of the old road is necessary to
accommodate DSG’s agricultural equipment. That evidence showed that DSG,
using the same type of agricultural equipment as it used on the old road, cannot
turn left onto the county road from the new road with the old road-sized apron, and
that it encounters difficulties turning right. The court rejected the new width
proposed by DSG’s engineers because that proposal assumed the use of different
equipment from that used by DSG. Accordingly, the court left it to the parties to
determine the proper width necessary to accommodate DSG’s agricultural
equipment. The Town fails to show that the court’s findings supporting this
specification are clearly erroneous.

¶32 Finally on these issues, the Town argues that the circuit court
erroneously ordered that the Town construct stormwater management facilities in
compliance with the Dane County stormwater ordinance if the new road contains
18,000 or more square feet of impervious surface. As the Town notes, the
ordinance requires stormwater management facilities if the amount of impervious
surface exceeds 20,000 square feet. DANE COUNTY, WIS., ORDINANCE, § 14.07.
The Town acknowledges that the old road had a stormwater detention basin, and
that a detention basin is one option for complying with the County ordinance.
However, the Town asserts, further analysis would be required to determine the
location, nature, and extent of stormwater management facilities appropriate for
the new road, should it exceed the 20,000 square-foot threshold in the ordinance.
The Town further asserts that, should the new road exceed that threshold once the
Town implements the specifications ordered by the circuit court, “the Town will
need to comply with the County requirements.” The Town concludes on this point

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by asserting that the 18,000 square-foot threshold imposed by the court “is a
compromise” for which neither party advocated.

¶33 We do not discern among these assertions a developed argument as
to how or why the circuit court erred in reaching that “compromise.” We could
reject the Town’s argument on that basis. See State v. Jackson, 229 Wis. 2d 328,
337, 600 N.W.2d 39 (Ct. App. 1999) (“A party must do more than simply toss a
bunch of concepts into the air with the hope that either the trial court or the
opposing party will arrange them into viable and fact-supported legal theories.”);
Herder Hallmark Consultants, Inc. v. Regnier Consulting Grp., Inc., 2004 WI
App 134, ¶16, 275 Wis. 2d 349, 685 N.W.2d 564 (”Ordinarily we will not address
undeveloped arguments.”). However, we also briefly explain why this
specification is not clearly erroneous.

¶34 The circuit court found that the old road had a stormwater
management facility in the form of a detention basin. The court also found that
the new road “as it will be constructed according to this order will be very close to
the minimum 20,000 square feet” that would require that the new road also have
stormwater management facilities under the Dane County ordinance. In light of
these factual findings, which the Town does not argue are clearly erroneous, the
court imposed the 18,000 square-foot threshold to require the Town to construct
stormwater management facilities “as if” the new road met the 20,000 square-foot
threshold. We conclude that this specification is not unreasonable based on the
unchallenged factual findings supporting it.

CONCLUSION

¶35 For the reasons stated, we affirm.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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