Southport Commons, LLC v. Wis. Dep't of Transp.

• Decision Date: 15 April 2020
• Docket Number: Appeal No. 2019AP130
• Citation: 392 Wis.2d 207,2020 WI App 26,944 N.W.2d 46
• Parties: SOUTHPORT COMMONS, LLC, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

392 Wis.2d 207

944 N.W.2d 46

2020 WI App 26

SOUTHPORT COMMONS, LLC, Plaintiff-Appellant,^†

v.WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Respondent.

Appeal No. 2019AP130

Court of Appeals of Wisconsin.

Submitted on Briefs: November 26, 2019

Opinion Filed: April 15, 2020

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Alan Marcuvitz and Smitha Chintamaneni of von Briesen & Roper, S.C., Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Jennifer L. Vandermeuse, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, C.J., Gundrum and Davis, JJ.

GUNDRUM, J.

¶1 Southport Commons, LLC appeals the circuit court's order granting the Wisconsin Department of Transportation's motion for judgment on the pleadings. Southport contends the court erred in ruling that its action is barred because it filed its claim for inverse condemnation more than three years after the damage at issue occurred to its property. Southport argues that statutory language indicating its claim against DOT needed to be filed "within 3 years after the alleged damage occurred ," WIS. STAT. § 88.87(2)(c) (2017-18)¹ (emphasis added), really means the claim needed to be filed within three years after the alleged damage was discovered. Because we conclude the statute means what it says, we affirm.

Background

¶2 According to the allegations in Southport's complaint, Southport owns approximately forty-five acres "in a prime location for commercial development" near Interstate 94 in Kenosha County. During approximately 2008 through 2009, DOT relocated an I-94 frontage road so as to bisect Southport's property with this new road. In July 2016, Southport received a survey and wetland delineation of its property, which, when compared to a similar 2007 survey and delineation, "identifie[d] a significant increase in the size and amount of wetlands on the Property, resulting from DOT's Construction Project." Prior to receiving the 2016 survey and delineation, Southport "had no knowledge of the [wetland increase] and the resulting significant damage caused to the Property." In March 2017, Southport filed a notice of claim against DOT, which DOT effectively denied. Southport subsequently filed this lawsuit, claiming inverse condemnation and seeking just compensation.

¶3 DOT moved for judgment on the pleadings on the basis that Southport filed its notice of claim more than three years after the damage occurred and thus its action was barred by WIS. STAT. § 88.87(2)(c), which provides that a property owner may file such a claim "within 3 years after the alleged damage occurred." Southport countered that the three-year period had not run because, based upon our decision in Pruim v. Town of Ashford , 168 Wis. 2d 114, 483 N.W.2d 242 (Ct. App. 1992), the period did not begin to run until Southport discovered the damage, which was when it received the 2016 survey and delineation. The circuit court granted DOT's motion, concluding that Pruim did not control, the damage to Southport occurred at the latest in 2009, under § 88.87(2)(c) Southport had three years to file its claim, and Southport did not file its claim until March 2017. Southport appeals.

Discussion

¶4 WISCONSIN STAT. § 88.87(2)(c) provides in relevant part: "If ... [DOT] constructs and maintains a highway ... not in accordance with par. (a), any property owner damaged by the highway ... may, within 3 years after the alleged damage occurred , file a claim with the appropriate governmental agency." (Emphasis added.) On appeal, Southport again argues that the requirement that a claim be filed within three years after the alleged damage "occurred" really means, based upon Pruim , that the claim must be filed within three years after the alleged damage is "discovered." Pruim does not control this case, and we reject Southport's strained reading of this statute.

¶5 Southport's challenge calls upon us to interpret and apply WIS. STAT. § 88.87(2)(c). Interpretation and application of a statute are matters of law we review de novo. State v. Simmelink , 2014 WI App 102, ¶5, 357 Wis. 2d 430, 855 N.W.2d 437 ; Showers Appraisals, LLC v. Musson Bros. , 2013 WI 79, ¶21, 350 Wis. 2d 509, 835 N.W.2d 226.

¶6 We begin, as we must, with the language of the statute. WISCONSIN STAT. § 88.87(2)(c) unambiguously provides that the three-year limitation period begins to run when the alleged damage "occurred." In this case, the circuit court concluded that that date was when the damage took place in 2009 (at the latest), and Southport does not challenge that factual determination on appeal. Instead, Southport contends, as a legal matter, that its discovery of the damage is when the limitations period begins. We disagree.

¶7 Damage "occurs" when it happens or takes place. See Occur , WEBSTER'S THIRD NEW INT'L DICTIONARY (unabr. 1993) ("occur" means "to present itself : come to pass : take place : HAPPEN "); see also Kremers-Urban Co. v. American Emp'rs Ins. Co. , 119 Wis. 2d 722, 741, 351 N.W.2d 156 (1984) ("The ordinary and common meaning of ‘occurrence’ is ‘something that takes place; something that happens unexpectedly and without design.’ " (citation omitted)).² On the other hand, as relevant to the context of this case, "discover" means "to obtain for the first time sight or knowledge of" (e.g., "[discover]ed a large bay that now bears his name" or "[discover]ed the circulation of the blood") and "to detect the presence of: FIND , DISCERN " (e.g., "[discover]ed arsenic in the patient's sleeping potion"). See Discover , WEBSTER'S THIRD NEW INT'L DICTIONARY (unabr. 1993) (emphasis omitted). When a thing occurs and when that thing is discovered are two distinct concepts. Damage may occur without anyone discovering it, but damage cannot be discovered without it having occurred and someone making the discovery. While the occurrence of a thing, such as damage, and the discovery of that thing can happen simultaneously, often that is not the case, as in the situation now before us.

¶8 In selecting when damage occurs as the trigger for the three-year-limitation period of WIS. STAT. § 88.87(2)(c), the legislature chose to not make the trigger dependent upon someone's discovery of the damage. Based upon Southport's position, it could have waited fifty years after the completion of DOT's road project to conduct its post construction survey and delineation and then it still would have had another three years to file its claim. The plain language the legislature chose—"occurred"—indicates the legislature did not intend such an open-ended time period for filing a claim.³

¶9 When the legislature intends to have a statutory limitation period begin to run when damage is discovered, as opposed to when it occurs, the legislature has no problem explicitly stating so. See , e.g., WIS. STAT. § 893.55(1m) (requiring commencement of an action against a health care provider "within the later of: (a) Three years from the date of the injury, or (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered ," but not later than five years following the act or omission (emphasis added)); WIS. STAT. § 893.51(2) ("An action under [ WIS. STAT. §] 134.90 shall be commenced within 3 years after the misappropriation of a trade secret is discovered or should have been discovered by the exercise of reasonable diligence."); see also WIS. STAT. §§ 402.725(2), 411.506(2), 893.80(1p). But here the legislature chose the term "occurred" and not "discovered."

¶10 Since the plain language of the statute does not support Southport's position, it understandably tries to focus our attention on a statement we made in Pruim that the then ninety-day time period to file a claim under this statute begins "when the damage is first discovered. " See Pruim , 168 Wis. 2d at 123, 483 N.W.2d 242 (emphasis added). Because the issue and circumstances before us in Pruim were significantly different from those before us now, our decision in Pruim does not control our decision in this case.

¶11 In Pruim , a heavy rainstorm on March 13, 1990, caused damage to a culvert and road shoulder next to property owned by Pruim. Id. at 117, 483 N.W.2d 242. Pruim discovered damage to his own property, which he claimed was caused by the negligent construction and maintenance of the culvert and shoulder, "right after" the storm but did not file a notice of claim with the Town until August 7, 1990. Id. at 117, 122, 483 N.W.2d 242. Pruim eventually filed suit, alleging that the Town's negligent construction and maintenance of the culvert and shoulder "continue[d] to cause erosion to his property, had caused the creation of a channel of water, and had caused the creation of a pond of water at the base of the culvert." Id. at 117, 483 N.W.2d 242. Pruim claimed this was a continuing nuisance "involv[ing] a series of continuing events, i.e., various rainstorms that caused continuing damage to his property," and he sought to recover costs for hiring a private contractor to make the needed repairs. Id. at 119, 122, 483 N.W.2d 242.

¶12 The town sought summary judgment on the basis that Pruim's notice of claim was untimely due to being filed more than ninety days after the March 13 storm caused damage to his property. Id. at 118, 483 N.W.2d 242. In addressing the matter on appeal, we appeared to initially read language into WIS. STAT. § 88.87(2)(c) (1991-92) that the legislature did not choose to incorporate as we stated—"[t]he notice of claim must be made within ninety days after the damage occurred and is discovered. " Pruim , 168 Wis. 2d at 119, 483 N.W.2d 242 (emphasis added). Reading Pruim more closely, it appears less as if we were actually attempting to add the additional "and is discovered" language to para. (c) and more as if we were treating the terms "discovered" and "occurred" as interchangeable based on the particular facts of the case.⁴ See ,...