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

• Decision Date: 08 June 2021
• Docket Number: No. 2019AP130,2019AP130
• Citation: 397 Wis.2d 362,960 N.W.2d 17,2021 WI 52
• Parties: SOUTHPORT COMMONS, LLC, Plaintiff-Appellant-Petitioner, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Respondent.
• Court: Wisconsin Supreme Court

397 Wis.2d 362

960 N.W.2d 17

2021 WI 52

SOUTHPORT COMMONS, LLC, Plaintiff-Appellant-Petitioner,

v.WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Respondent.

No. 2019AP130

Supreme Court of Wisconsin.

Oral Argument: January 13, 2021

Opinion Filed: June 8, 2021

For the plaintiff-appellant-petitioner, there were briefs filed by Alan Marcuvitz, Smitha Chintamaneni, Andrea H. Roschke, Adam S. Bazelon, and Von Briesen & Roper, S.C., Milwaukee. There was an oral argument by Smitha Chintamaneni and Alan MarcuvitzI.

For the defendant-respondent, there was a brief filed by Jennifer L. Vandermeuse, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Jennifer L. Vandermeuse.

ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.

ANN WALSH BRADLEY, J.

¶1 The petitioner, Southport Commons, LLC (Southport), seeks review of a published court of appeals decision that affirmed the circuit court's grant of the Department of Transportation's (DOT) motion for judgment on the pleadings.¹ Southport asserts that the court of appeals erred in determining that its notice of claim pursuant to Wis. Stat. § 88.87(2)(c) (2017-18)² was not timely filed.

¶2 Wisconsin Stat. § 88.87(2)(c) provides that a property owner damaged by the construction or maintenance of a highway or railroad grade must file a notice of claim "within 3 years after the alleged damage occurred" as a prerequisite to filing a lawsuit. Southport contends that its notice of claim, filed within three years of when the damage was discovered, is sufficient. Alternatively, Southport asserts that the damage to its land occurred continuously over time and that the actual time the damage occurred in this case was undetermined and requires remand to the circuit court for fact finding.

¶3 DOT disagrees, arguing that "occurred" is not synonymous with "discovered" and that under a plain reading of the statute, Southport's notice of claim was not timely filed. It further contends that Southport did not raise its alternative argument in the circuit court or court of appeals, and as a result this court should not consider it.

¶4 We conclude that "occurred" in the context of Wis. Stat. § 88.87(2)(c) does not mean "discovered." The notice of claim period in § 88.87(2)(c) begins to run when the damage happens or takes place.

¶5 Further, we conclude that Southport failed to meaningfully develop in the circuit court or court of appeals an argument that the damage to its property occurred gradually over a period of years. Instead, it argued only that the notice of claim requirement is triggered by discovery. As a consequence, Southport did not raise a genuine issue of material fact as to the date of damage, and the circuit court properly granted DOT's motion for judgment on the pleadings.

¶6 Accordingly, we affirm the decision of the court of appeals.

I

¶7 The facts set forth below are taken from Southport's verified petition-complaint. Because we are reviewing the circuit court's determination of a motion for judgment on the pleadings, we address first whether the complaint states a claim and we assume these facts as alleged are true.³

¶8 Southport owns land in Kenosha County that contains approximately 45.22 acres of vacant land. The property is now severed by an Interstate 94 frontage road.

¶9 In 2008 and 2009, DOT engaged in a construction project to relocate the frontage road, which was formerly located entirely east of the property. The new location of the road resulted in the bisection of the property.

¶10 Prior to the construction project, the property was surveyed. The result of the survey was the identification and delineation of three areas of wetlands on the property.

¶11 Construction was completed in 2009, and in 2016 Southport obtained a new survey and new wetland delineation in an attempt to determine the feasibility of future commercial development on the site. The new wetland delineation, which is dated July 20, 2016, "identifies a significant increase in the size and amount of wetlands on the Property, resulting from DOT's Construction Project." Specifically, the new report identifies six distinct wetland areas, including three areas of wetlands that did not exist prior to the construction project, and a significant increase in the size of the three previously existing wetlands.

¶12 Southport alleged that before obtaining the post-construction wetland delineation, it had no knowledge of the creation of new wetlands or the expansion of existing wetlands on the site. It further alleged that the new and expanded wetlands caused significant damage to the property.

¶13 On March 2, 2017, Southport filed a "Notice of Claim and Claim Against the Wisconsin Department of Transportation Pursuant to Wis. Stat. § 88.87(2)(c)." DOT did not respond to the Notice of Claim and Claim, effectively denying it.

¶14 Subsequently, Southport filed suit against DOT, claiming inverse condemnation.⁴ Specifically, it alleged:

DOT's faulty construction during DOT's Construction Project and continued faulty maintenance of 120th Avenue has impeded, and continues to impede, the general flow of water in an unreasonable manner so as to cause an unnecessary accumulation of waters and an unreasonable discharge of waters onto the Property, which has directly resulted in the creation of the New Wetlands and Larger Wetlands on the Property, thus severely damaging Southport by rendering large portions of the Property undevelopable and impinging on Southport's ability to develop the Property.

In Southport's estimation, such change in its land amounted to a taking for which it sought just compensation.

¶15 DOT answered the complaint and subsequently moved for judgment on the pleadings. The motion was based on the assertion that Southport failed to file its notice of claim within three years of when the damage occurred as Wis. Stat. § 88.87(2)(c) requires. In response, Southport contended that § 88.87(2)(c), as interpreted in Pruim v. Town of Ashford, 168 Wis. 2d 114, 483 N.W.2d 242 (Ct. App. 1992), allows a notice of claim to be filed within three years after the damage is discovered, and that its notice of claim was therefore timely.

¶16 The circuit court granted DOT's motion. Relying on the plain language of Wis. Stat. § 88.87(2)(c), it determined that "[t]he statute is plain on its face. It does say occurred." Further, the circuit court stated that the damage occurred in 2009 at the latest and that accordingly the notice of claim was not timely filed.

¶17 Southport appealed, and the court of appeals affirmed the circuit court in a published decision. Southport Commons, LLC v. DOT, 2020 WI App 26, 392 Wis. 2d 207, 944 N.W.2d 46. Like the circuit court, the court of appeals focused on the legislature's choice to use the word "occurred" rather than "discovered." It determined that "[w]hen 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." Id., ¶9. Further, the court of appeals concluded that Pruim, relied upon by Southport, "does not control [its] decision in this case" because "the issue and circumstances before [it] in Pruim were significantly different from those before [it] now." Id., ¶10. Southport petitioned for review in this court.

II

¶18 We are called upon to review the court of appeals' determination that the circuit court properly granted DOT's motion for judgment on the pleadings. A judgment on the pleadings is essentially a summary judgment decision without affidavits and other supporting documents.

McNally v. Capital Cartage, Inc., 2018 WI 46, ¶23, 381 Wis. 2d 349, 912 N.W.2d 35. Judgment on the pleadings is proper only if there are no genuine issues of material fact. Id. Whether judgment on the pleadings should be granted is a question of law we review independently of the determinations rendered by the circuit court and court of appeals. Id., ¶24.

¶19 In our review, we interpret and apply Wis. Stat. § 88.87(2)(c). Statutory interpretation and application are likewise questions of law we review independently of the determinations made by the circuit court and court of appeals. Metro. Assocs. v. City of Milwaukee, 2018 WI 4, ¶24, 379 Wis. 2d 141, 905 N.W.2d 784.

III

¶20 We begin by interpreting the word "occurred" in Wis. Stat. § 88.87(2)(c). Subsequently, we examine the pleadings and arguments made in this case and apply our interpretation of § 88.87(2)(c) to the facts at hand.

A

¶21 Wisconsin Stat. § 88.87 "was enacted to regulate the construction and drainage of all highways in order to protect property owners from damage to lands caused by unreasonable diversion or retention of surface waters due to the construction of highways or railroad beds." Lins v. Blau, 220 Wis. 2d 855, 859, 584 N.W.2d 183 (Ct. App. 1998). It "imposes a duty on governmental entities to refrain from impeding 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 water-soaking lowlands." Id. at 859-60, 584 N.W.2d 183 (internal quotation omitted).

¶22 Paragraph (2)(c) creates a remedy for property owners who claim damages from a violation of Wis. Stat. § 88.87. Id. at 860, 584 N.W.2d 183. It also establishes certain procedures to be followed in making a claim. Van v. Town of Manitowoc Rapids, 150 Wis. 2d 929, 930, 442 N.W.2d 557 (Ct. App. 1989).

¶23 Wisconsin Stat. § 88.87(2)(c) addresses when a claim must be filed:

If a city, village, town, county or railroad company or the department of transportation constructs and maintains a highway or railroad grade not in accordance with par. (

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