Southport Commons, LLC v. DOT , 2021 WI 52 ( 2021 )

2021 WI 52SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP130
COMPLETE TITLE: Southport Commons, LLC,
Plaintiff-Appellant-Petitioner,
v.
Wisconsin Department of Transportation,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 392 Wis. 2d 207,944 N.W.2d 46PDC No:2020 WI App 26 - Published
OPINION FILED: June 8, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 13, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: David M. Bastianelli
JUSTICES:
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.
NOT PARTICIPATING:
ATTORNEYS:
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.
2021 WI 52NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP130
(L.C. No. 2018CV345)
STATE OF WISCONSIN : IN SUPREME COURT
Southport Commons, LLC,
Plaintiff-Appellant-Petitioner,
FILED
v.
JUN 8, 2021
Wisconsin Department of Transportation,
Sheila T. Reiff
Defendant-Respondent. Clerk of Supreme Court
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.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. 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
1Southport Commons, LLC v. DOT, 2020 WI App 26, 392
Wis. 2d 207, 944 N.W.2d 46 (affirming the order of the circuit
court for Kenosha County, David M. Bastianelli, Judge).
No. 2019AP130
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
All subsequent references to the Wisconsin Statutes are to
2
the 2017-18 version unless otherwise indicated.
2
No. 2019AP130
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.
3 See Helnore v. DNR, 2005 WI App 46, ¶2, 280 Wis. 2d 211,
694 N.W.2d 730.
3
No. 2019AP130
¶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.
4
No. 2019AP130
¶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.
4 "Inverse condemnation is a procedure by which a property
owner petitions the circuit court to institute condemnation
proceedings." Maple Grove Country Club Inc. v. Maple Grove
Ests. Sanitary Dist., 2019 WI 43, ¶13 n.9, 386 Wis. 2d 425, 926
N.W.2d 184. "It 'allows a property owner to institute
condemnation proceedings against anyone who possesses, but fails
to exercise, the power of condemnation.'" Id. (quoting Koskey
v. Town of Bergen, 2000 WI App 140, ¶5, 237 Wis. 2d 284, 614
N.W.2d 845); see Wis. Stat. § 32.10; Wis. Const. art. I, § 13.
5
No. 2019AP130
¶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.
6
No. 2019AP130
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
7
No. 2019AP130
accumulation and discharge of surface waters flooding or water-
soaking lowlands." Id. at 859-60 (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. 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. (a), any property owner damaged
by the highway or railroad grade may, within 3 years
after the alleged damage occurred, file a claim with
the appropriate governmental agency or railroad
company. The claim shall consist of a sworn statement
of the alleged faulty construction and a description,
sufficient to determine the location of the lands, of
the lands alleged to have been damaged by flooding or
water-soaking.
It further delineates the post-filing process:
Within 90 days after the filing of the claim, the
governmental agency or railroad company shall either
correct the cause of the water damage, acquire rights
to use the land for drainage or overflow purposes, or
deny the claim. If the agency or company denies the
claim or fails to take any action within 90 days after
the filing of the claim, the property owner may bring
an action in inverse condemnation under ch. 32 or sue
for such other relief, other than damages, as may be
just and equitable.
¶24 Southport contends that by filing its notice of claim
under Wis. Stat. § 88.87(2)(c) within three years of the time
the damage was discovered, it fulfills the statutory requirement
8
No. 2019AP130
that the notice be filed within three years of when the damage
occurred. DOT disagrees, arguing that "occurred" is not
synonymous with "discovered."
¶25 To resolve this dispute, we must interpret the
language of Wis. Stat. § 88.87(2)(c). Statutory interpretation
begins with the language of the statute. State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110. If the meaning of the statute is plain, we need
not inquire further. Id.¶26 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. We also interpret statutory language
"in the context 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., ¶46.
¶27 We therefore begin with the language of the statute,
and specifically the phrase, "within 3 years after the alleged
damage occurred," with our focus being on the word "occurred."
The parties each advocate for a different definition of the
word. Southport proffers "to be found to exist or appear."
DOT, in contrast, puts forth "something that takes place" or
"something that happens."
¶28 "For purposes of statutory interpretation or
construction, the common and approved usage of words may be
established by consulting dictionary definitions." State v.
9
No. 2019AP130
Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998). The court
of appeals did just this when it determined that "[d]amage
'occurs' when it happens or takes place." Southport Commons,
392 Wis. 2d 207, ¶7 (citing Occur, Webster's Third New Int'l
Dictionary (unabr. 1993)).
¶29 We agree with both the approach and the result of the
court of appeals. The court of appeals correctly determined
that in common and ordinary usage, something "occurs" when it
happens or takes place. See Occurrence, Black's Law Dictionary
1299 (11th ed. 2019) (defining "occurrence" as "[s]omething that
happens or takes place"). This is certainly a more common
definition for "occur" than that offered by Southport. It is
the "common, ordinary, and accepted meaning" of a word that
governs. Kalal, 271 Wis. 2d 633, ¶45.
¶30 It is not only the dictionary that supports such a
determination, but it is also our case law. We have previously
stated that "[t]he ordinary and common meaning of 'occurrence'
is 'something that takes place; something that happens
unexpectedly and without design.'" Kremers-Urban Co. v. Am.
Emp.'s Ins. Co., 119 Wis. 2d 722, 741, 351 N.W.2d 156 (1984).
The common usage of the word "occurred" thus has no element of
discovery as Southport contends.
¶31 When the legislature wants to make discovery the
trigger for a statutory filing requirement, it knows how to do
so. Indeed, it has done so in other areas of the Wisconsin
Statutes. For example, in Wis. Stat. § 893.55(1m), the medical
malpractice statute of limitations, the legislature set forth
10
No. 2019AP130
that an action "shall be commenced 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, except that an
action may not be commenced under this paragraph more than 5
years from the date of the act or omission." Further examples
of discovery as a trigger for a filing deadline abound in the
Wisconsin Statutes.5
¶32 Unlike Wis. Stat. § 893.55(1m), Wis. Stat.
§ 88.87(2)(c) does not contain any reference to "discovery."
The legislature is presumed to "carefully and precisely" choose
statutory language to express a desired meaning. Indus. to
5See, e.g., Wis. Stat. §§ 411.506(2) ("A cause of action
for default accrues when the act or omission on which the
default or breach of warranty is based is or should have been
discovered by the aggrieved party, or when the default occurs,
whichever is later."); 893.51(2) ("An action under s. 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."); 893.555(2) ("[A]n
action to recover damages for injury arising from any treatment
or operation performed by, or from any omission by, a long-term-
care provider . . . shall be commenced within the later of: (a)
Three years from the date of the injury. (b) One year from the
date the injury was discovered or, in the exercise of reasonable
diligence should have been discovered . . . ."); 893.80(1p) ("In
any such action, [a claim to recover damages against any
political corporation, governmental subdivision or agency
thereof for the negligent inspection of any property, premises,
place of employment or construction site for the violation of
any statute, rule, ordinance or health and safety code,] the
time period under sub. (1d)(a) shall be one year after discovery
of the negligent act or omission or the date on which, in the
exercise of reasonable diligence the negligent act or omission
should have been discovered.")
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No. 2019AP130
Indus., Inc. v. Hillsman Modular Molding, Inc., 2002 WI 51, ¶19
n.5, 252 Wis. 2d 544, 644 N.W.2d 236 (citation omitted). From
this, we conclude that the legislature chose not to include a
discovery provision in § 88.87(2)(c), and it would be error to
read one in. See Dawson v. Town of Jackson, 2011 WI 77, ¶42,
336 Wis. 2d 318, 801 N.W.2d 316 ("We decline to read into the
statute words the legislature did not see fit to write.").
¶33 This result is further supported by the legislative
history of Wis. Stat. § 88.87(2)(c). See State v. Wilson, 2017
WI 63, ¶23, 376 Wis. 2d 92, 896 N.W.2d 682 (explaining that
"legislative history and other authoritative sources may be
consulted to confirm a plain meaning interpretation"). As set
forth by the court of appeals in Lins, in 1993 the legislature
amended § 88.87(2)(c), lengthening the claim period from 90 days
to three years. Lins, 220 Wis. 2d at 861; see 1993 Wis. Act
456, § 109.
¶34 According to the Legislative Council Special Committee
Note accompanying the enactment of this change, "[t]he
legislature made this change with the intent to provide the
landowner with 'sufficient time to discover the damage.'" Lins,
220 Wis. 2d at 861 (quoting Legislative Council Special
Committee Note, 1993 Wis. Act 456, § 109). This Note indicates
that the legislature had deemed three years to be "sufficient
time to discover the damage" and that after that time had passed
discovery would not trigger the notice of claim period. As DOT
argued in its brief, "[t]his change would have been unnecessary
if the notification period does not begin until the damage is
12
No. 2019AP130
discovered." The legislature thus did not intend an open-ended
claim period such as that for which Southport advocates.6
¶35 Despite the plain language of the statute, Southport
contends that the court of appeals' decision in Pruim, 168
Wis. 2d 114, compels an opposite result. In Pruim, the
plaintiff filed a notice of claim and eventually sued the Town
of Ashford for negligently constructing and maintaining a road
shoulder, which the plaintiff identified as a continuing
nuisance. Id. at 117. The court was presented with the
question of whether the limitation period of Wis. Stat.
§ 88.87(2)(c) (then 90 days) began to run when the injury was
discovered or if it "reset" at each occurrence of a continuing
nuisance.
¶36 It determined that the former was the correct
formulation——"ninety days from the date first discovered." Id.In arriving at its conclusion, the Pruim court seemingly used
the words "occurred" and "discovered" interchangeably. For
example, the opinion stated with respect to Wis. Stat.
6An open-ended claim period would further run counter to
the general purpose of notice of claim statutes. Generally, the
purposes of notice of claim statutes are to allow governmental
entities to investigate and evaluate potential claims and to
afford them the opportunity to compromise and settle claims,
thereby avoiding costly and time-consuming litigation. Yacht
Club at Sister Bay Condo. Ass'n v. Village of Sister Bay, 2019
WI 4, ¶20, 385 Wis. 2d 158, 922 N.W.2d 95. An open-ended claim
period would not provide governmental entities with sufficient
information to allow them to budget for either a settlement or
litigation, and would thus undermine this purpose. See id.,
¶37.
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No. 2019AP130
§ 88.87(2)(c), "[t]he statute is unambiguous. The notice of
claim must be made within ninety days after the damage occurred
and is discovered, and the claims for relief are limited to
inverse condemnation or any sort of equitable relief short of
damages." Id. at 119.
¶37 The Pruim court continued:
We have no hesitancy in concluding that the ninety-day
provision did not contemplate allowing a new cause of
action each day the damage continues. To the
contrary, the statute contemplates the opposite. We
read the statute to say that when the damage is first
discovered, the time begins to run. To read it any
other way would be contrary to the unambiguous
language of the statute and clearly contrary to the
intent expressed by the committee.
Id. at 123 (emphasis added). Accordingly, Southport asserts
that under Pruim, "discovery" triggers Wis. Stat.
§ 88.87(2)(c)'s notice of claim period.
¶38 At first blush, the above-cited passages from Pruim
support Southport's argument. After all, the Pruim court used
the phrase "first discovered" rather than "first occurred."
However, that argument falls apart when the circumstances that
gave rise to the claim in Pruim are closely examined.
¶39 To explain, the landowner in Pruim discovered the
damage in the immediate aftermath of its occurrence. See id. at
122 (explaining that "it is undisputed that Pruim discovered the
damage right after the heavy rainstorm of March 13, 1990").
Within that context, the court's use of the phrase "occurred and
is discovered," along with its use of the two terms
interchangeably, makes sense. However, the Pruim court did not
14
No. 2019AP130
address the question raised in the instant case, i.e., when the
notice of claim period begins when discovery happens long after
the damage occurs. Pruim is distinguishable on its facts, and
thus it does not control the outcome here.
¶40 We therefore 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.
B
¶41 We turn next to examine the pleadings and arguments
made in this case and apply our interpretation of Wis. Stat.
§ 88.87(2)(c) to the facts at hand.
¶42 Our review is guided by the methodology for evaluating
a motion for judgment on the pleadings. "We determine first
whether the complaint has stated a claim." McNally, 381
Wis. 2d 349, ¶23. "If so, we next examine the responsive
pleading to ascertain whether an issue of material fact exists."
Id.¶43 Judgment on the pleadings is proper if there are no
genuine issues of material fact. Id. "A factual issue is
genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id., ¶24.
¶44 As an initial matter, Southport's complaint states a
claim for inverse condemnation. To state an inverse
condemnation claim, a property owner must allege a property
interest sufficient to make them an owner, an occupation or
taking of the property, and that the condemnor has failed to
15
No. 2019AP130
exercise its condemnation powers. See Maxey v. Redevelopment
Auth. of Racine, 94 Wis. 2d 375, 387, 288 N.W.2d 794 (1980).
Southport alleges that it is the sole owner of the property at
issue, that DOT has occupied and taken portions of Southport's
property through faulty construction and maintenance of the
frontage road, and that DOT did not exercise its power of
condemnation. This is sufficient to state an inverse
condemnation claim.
¶45 Following the judgment on the pleadings methodology,
we surmise next whether a genuine issue of material fact exists
as to the date of the damage. Southport's complaint alleges
that the damage to its land was discovered in 2016. However, it
makes no allegation regarding the date the damage is alleged to
have occurred. The complaint states: "During approximately
2008 through 2009 DOT proceeded with a construction project
that, inter alia, relocated the I-94 frontage road, which was
formerly located entirely east of the Property, to a new
location resulting in the bisection of the Property by the new
frontage road . . . ."
¶46 With no allegation that the damage occurred within the
three years prior to the filing of the notice of claim, and no
supporting materials placing such a fact in issue, we must
determine that judgment on the pleadings was properly granted by
the circuit court. In other words, there is no genuine issue of
material fact as to the date of the damage because Southport did
not allege such a factual dispute. Southport put all of its
eggs in the basket of "discovery" and did not meaningfully
16
No. 2019AP130
develop in either the circuit court or court of appeals any
argument that the damage occurred surreptitiously over time.7 As
such, it would be improper for this court to rely on such a
basis here.
¶47 Further, it would not have taken much to raise an
issue of material fact. In response to DOT's motion for
judgment on the pleadings, Southport could have filed an
affidavit placing the date of damage in issue and thus converted
the motion for judgment on the pleadings to a motion for summary
judgment. See Wis. Stat. § 802.06(3); Schuster v. Altenberg,
144 Wis. 2d 223, 228, 424 N.W.2d 159 (1988) ("[A] motion for
judgment on the pleadings will be converted to a motion for
summary judgment if matters outside the pleadings are presented
to the court."). Similarly, it could have alleged surreptitious
damage over time in the complaint or moved to amend the
complaint after DOT filed its motion.
¶48 This is not to say that Southport needs to allege
compliance with Wis. Stat. § 88.87(2)(c) in its complaint in
7 At oral argument, the court questioned Southport's counsel
as follows:
Your focus was not on when the damage occurred.
Therefore, you didn't plead when the damage occurred
because your whole approach was when it was
discovered. So when it occurred isn't all that
important to you. When it was discovered is the
linchpin of your pleadings and also your argument in
the circuit court, is that correct?
Counsel answered in the affirmative.
17
No. 2019AP130
order to survive a motion for judgment on the pleadings. See
Maple Grove Country Club Inc. v. Maple Grove Ests. Sanitary
Dist., 2019 WI 43, ¶49, 386 Wis. 2d 425, 926 N.W.2d 184 (citing
Rabe v. Outagamie Cnty., 72 Wis. 2d 492, 498, 241 N.W.2d 428(1976)). But when DOT filed its motion for judgment on the
pleadings, Southport needed to do something to create a factual
dispute. Arguing only that "occurred" means "discovered" was
not sufficient.
IV
¶49 In sum, 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.
¶50 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.
¶51 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
18
No. 2019AP130.pdr
¶52 PATIENCE DRAKE ROGGENSACK, J. (dissenting). This
decision adjudicates Southport Commons, LLC's claim for inverse
condemnation based on the Department of Transportation's (DOT)
construction and continued maintenance of the frontage road for
I-94, a/k/a 120th Avenue, which Southport avers caused
accumulations of water that damaged its property. The DOT moved
for Judgment on the Pleadings, and the circuit court dismissed
Southport's Verified Complaint,1 after concluding that it failed
to state a claim upon which relief can be granted.2 As I explain
below, this was an erroneous legal conclusion because
Southport's Verified Complaint sufficiently alleged a claim for
inverse condemnation.
¶53 However, a review of the transcript from the circuit
court proceedings shows that the circuit court's judgment was
not grounded in its conclusion that a claim for inverse
condemnation had not been made within the four corners of
Southport's Verified Complaint. But rather, the circuit court
interpreted Wis. Stat. § 88.87(2)(c) and concluded that
Southport had failed to file a claim with DOT "within three
years after the alleged damage occurred." The circuit court
1Verification requires, "A formal declaration made in the
presence of an authorized officer, such as a notary
public . . . where one swears to the truth of the statements in
the document. Traditionally, a verification is used as a
conclusion for all pleadings that are required to be sworn."
Black's Law Dictionary, 1698 (9th ed. 2009).
2 R.28:22.
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defined "occurred" as "happened," and because DOT's construction
concluded in 2009, the circuit court concluded the damages
happened when construction was concluded. Thereafter, the
circuit court applied the three year notice provision in
§ 88.87(2)(c) to Southport's takings claim as though it were a
statute of repose.3 The court of appeals affirmed dismissal on
the same grounds, Southport Commons, LLC v. DOT, 2020 WI App 26,
¶16, 392 Wis. 2d 207, 944 N.W.2d 46, and the majority repeats
that error for a third time.4
¶54 Southport's Verified Complaint avers that damage
resulted both from DOT's construction and from DOT's maintenance
of the frontage road it constructed.5 Southport was not required
to plead when damage occurred in order to make a valid claim for
inverse condemnation. Maxey v. Redevelopment Auth. of Racine,
94 Wis. 2d 375, 397, 288 N.W.2d 794 (1980) (concluding that Wis.
Stat. § 32.10, the statute that establishes the requirement for
inverse condemnation, sets no fixed date for evaluation).
¶55 The Answer says nothing about when "damage occurred."
DOT simply "denies that construction of Project ID #1032-14-74
and its continued maintenance of 120th Avenue have directly
caused both the alleged new wetlands and the alleged larger
3 R.28:22.
4 Majority op., ¶4.
5 Verified Complaint, ¶¶7, 10, 15, 17, 19, 28.
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wetlands."6 This allegation created an issue of fact about
whether DOT's actions were a cause of Southport's damages.
¶56 As the movant, DOT had the burden to prove that it was
entitled to judgment on the pleadings. Furthermore, failing to
comply with a notice of claim statute is an affirmative defense
Maple Grove Country Club Inc. v. Maple Grove Ests. Sanitary
Dist., 2019 WI 43, ¶3, 386 Wis. 2d 425, 926 N.W.2d 184(concluding that "noncompliance with the notice of claim statute
is an affirmative defense that must be set forth in a responsive
pleading"). DOT, as the proponent of the affirmative defense,
had the burden of proof on that defense. See State ex rel.
Coleman v. McCaughtry, 2006 WI 49, ¶38, 290 Wis. 2d 352, 714
N.W.2d 900 (concluding that the "State has the burden of proof
in regard to all the elements of its laches defense"). The
pleadings do not provide the proof necessary for DOT to prevail
on its affirmative defense.
¶57 Maybe Southport would lose when the facts were
developed, but maybe not. However, this is not a case that can
be decided on the pleadings. The Verified Complaint clearly
states a claim for inverse condemnation, as the majority opinion
initially acknowledges.7 Southport's claim is grounded in an
alleged governmental taking without just compensation, and it
follows the requirements of Wis. Stat. § 32.10 in regard to
claims for inverse condemnation. As we have explained many
6 Answer and Affirmative Defense, ¶17.
7 Majority op., ¶44.
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times, a claim for inverse condemnation arises from rights of
property owners that are protected by two constitutions.
Brenner v. New Richmond Reg'l Airport Comm'n, 2012 WI 98, ¶¶37–
40, 343 Wis. 2d 320, 816 N.W.2d 291.
¶58 I write in dissent because basic rules of civil
procedure that control when judgment on the pleadings may be
granted have been disregarded by three courts. In addition, the
majority opinion creates a new element for an inverse
condemnation claim and converts an affirmative defense into a
pleading requirement for Southport. When this court disregards
basic rules of civil procedure, changes pleading rules and
overrules precedent of this court without so much as a by-your-
leave in order to obtain the outcome it prefers, it causes
confusion throughout the court system that goes far beyond
Southport's claim for inverse condemnation. Accordingly, I
respectfully dissent.
I. BACKGROUND
¶59 The only factual allegations about water damage to
Southport's property were set out in the Complaint, whose
allegations were made by a sworn statement, i.e., in a verified
complaint, as Wis. Stat. § 88.87(2)(c) and Wis. Stat. § 32.10required. Southport repeatedly averred that damage to its
property occurred both from DOT's faulty construction and from
DOT's faulty maintenance of the frontage road it constructed.8
8 Verified Complaint, ¶¶7, 10, 15, 17, 19, 28.
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¶60 In regard to its claim for inverse condemnation,
Southport averred that it is the "sole owner of the Property."9
That during "approximately 2008 through 2009 DOT proceeded with
a construction project that . . . relocated the I-94 frontage
road," a/k/a 120th Avenue.10 Following DOT's construction, there
was a "significant increase in the size and amount of wetlands
on [Southport's] Property."11 Southport also averred that "DOT's
Construction Project and its continued maintenance of 120th
Avenue has directly caused both the New Wetlands and the Larger
Wetlands."12 That "the wetlands created on the Property as a
result of DOT's Construction Project and ongoing maintenance of
120th Avenue" damaged Southport's Property.13 "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."14
¶61 Most of DOT's Answers to the Verified Complaint were
either denials or denials based on insufficient knowledge.15 DOT
9 Id., ¶7.
10 Id., ¶10.
11 Id., ¶15.
12 Id., ¶17.
13 Id., ¶19.
14 Id., ¶28.
15 Answer and Affirmative Defense, ¶¶1, 2, 5-7, 11–22, 28–
32.
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made no allegation of when damage occurred. DOT does admit that
Southport filed a claim with DOT, but "denies that the notice of
claim and claim were timely filed."16 DOT also lists eight
affirmative defenses: failure to state a claim, sovereign
immunity, circuit court lacked subject matter jurisdiction,
statutes of limitation, laches, contributory negligence,
superseding cause and failure to mitigate damages.17 Therefore,
based on the four corners of the pleadings of both parties, it
is only Southport who avers, as general statements, that damage
began with DOT's construction and continued due to DOT's
maintenance of the road it constructed.
II. DISCUSSION
A. Standard of Review
¶62 DOT moved for judgment on the pleadings pursuant to
Wis. Stat. § 802.06(3). "A judgment on the pleadings is
essentially a summary judgment minus affidavits and other
supporting documents." Commercial Mortg. & Fin. Co. v. Clerk of
Cir. Ct., 2004 WI App 204, ¶10, 276 Wis. 2d 846, 689 N.W.2d 74.
When reviewing a decision on such a motion, we begin by
independently examining the complaint to determine whether a
claim has been stated. Id. If a claim has been stated, then we
examine responsive pleadings to determine whether issues of
material fact or law have been joined. Id. Because complaints
are to be liberally construed, "we may dismiss the claim only if
16 Id., ¶23.
17 Id., ¶¶A–F.
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it is 'quite clear that under no conditions can the plaintiff
recover.'" Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655,
663, 571 N.W.2d 393 (1997).
¶63 The circuit court said that it dismissed Southport's
complaint for failing to state a claim.18 Whether a complaint
fails to state a claim is a question of law that we
independently decide. Kaloti Enters., Inc. v. Kellogg Sales
Co., 2005 WI 111, ¶10, 283 Wis. 2d 555, 699 N.W.2d 205; Hausman,
214 Wis. 2d at 662. During our review, "we are concerned only
with the legal sufficiency of the complaint." Kohlbeck v.
Reliance Const. Co., Inc., 2002 WI App 142, ¶9, 256 Wis. 2d 235,
647 N.W.2d 277.
¶64 A review of the record shows that the circuit court
actually did not conclude that the Verified Complaint failed to
state a claim for inverse condemnation. Rather, the circuit
court concluded, at DOT's urging, that Wis. Stat. § 88.87(2)(c)
created a three-year statute of repose starting when DOT
completed the construction project on Southport's property.
Because Southport filed its notice of claim with DOT after that
three-year period, the circuit court dismissed its inverse
condemnation claim. The majority opinion does the same thing.19
B. Legal Issues
1. Inverse Condemnation
18 R.28:22.
19 Majority op., ¶¶45, 46.
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¶65 Southport's claim is for inverse condemnation. A
claim for inverse condemnation is made pursuant to Wis. Stat.
§ 32.10 and has four elements: (1) the plaintiff owned the
property at issue; (2) actions by a person with condemnation
power; (3) those actions permanently damaged or took plaintiff's
property; (4) failure of the condemnor to bring a direct
condemnation proceeding. Andersen v. Vill. of Little Chute, 201
Wis. 2d 467, 478, 549 N.W.2d 737 (1996); Maxey, 94 Wis. 2d at
386.
¶66 Here, Southport alleged that it owned the property at
issue.20 That DOT possessed the power of condemnation.21 That
DOT re-constructed the frontage road for I-94, a/k/a 120th
Avenue, on its property.22 DOT's construction and continued
maintenance of 120th Avenue caused a "significant increase in
the size and amount of wetlands on [Southport's Property]."23
That "DOT has taken Southport's Property and/or occupied
Southport's Property for drainage and/or with drainage easements
(the 'Taking') without properly exercising its power of
condemnation, including the payment of just compensation for the
Taking."24
20 Verified Complaint, ¶7.
21 Id., ¶4.
22 Id., ¶10.
23 Id., ¶¶15, 17.
24 Id., ¶29.
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¶67 There can be no question that the Verified Complaint
stated a claim for inverse condemnation. The majority opinion
initially agreed with my conclusion, as it explains in paragraph
44:
Southport alleges that it is the sole owner of the
property at issue, that DOT has occupied and taken
portions of Southport's property through faulty
construction and maintenance of the frontage road, and
that DOT did not exercise its power of condemnation.
This is sufficient to state an inverse condemnation
claim.[25]
¶68 However, the majority opinion then morphs into
discussing a fact that Southport was not required to plead in
order to state a claim for inverse condemnation. The majority
opinion is creative in how it gets around basic rules of civil
procedure. First, it concludes that Southport stated a claim
for inverse condemnation,26 then it adds a new requirement to
pleadings for inverse condemnation. The majority opinion says,
Following the judgment on the pleadings methodology,
we surmise next whether a genuine issue of material
fact exists as to the date of the
damage . . . [Southport] makes no allegation regarding
the date the damage is alleged to have occurred.[27]
Because Southport did not allege "the date of the damage," the
majority grants what it labels judgment on the pleadings to DOT.
The majority states,
With no allegation that the damage occurred within the
three years prior to the filing of the notice of
25 Majority op., ¶44.
26 Id.
27 Majority op., ¶45 (emphasis in majority opinion).
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claim, and no supporting materials placing such a fact
in issue, we must determine that judgment on the
pleadings was properly granted by the circuit court.
In other words, there is no genuine issue of material
fact as to the date of the damage because Southport
did not allege such a factual dispute.[28]
¶69 The reader should take note that the majority opinion
actually is making two legal determinations that are quite
different from what one would ascertain by simply reading the
quoted words. First, the majority opinion has added a new
required element for an inverse condemnation claim, the date the
damage occurred. There is no support for this in Wis. Stat.
§ 32.10 which establishes the elements of an inverse
condemnation claim, or for that matter, in the reasoning of the
majority opinion. It is just a way to get the result the
majority prefers. Second, the majority opinion converted an
affirmative defense, noncompliance with a notice of claim
statute, into a pleading obligation for a plaintiff in an
inverse condemnation claim. All of this is new law that has no
legal foundation, ignores basic rules of civil procedure and, in
regard to the conversion of the affirmative defense, is in
direct conflict with our decision in Maple Grove, as I explain
below.
2. Affirmative Defense
¶70 Due to prior court decisions, and now the majority
opinion, central to my review is the notice of claim under Wis.
Stat. § 88.87(2)(c) that DOT contends Southport did not timely
accommodate. We have examined notice of claim statutes in the
28 Majority op., ¶¶45, 46.
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past and have concluded that "noncompliance with the notice of
claim statute is an affirmative defense that must be set forth
in a responsive pleading." Maple Grove, 386 Wis. 2d 425, ¶3.
¶71 In Maple Grove, it was alleged that the plaintiff,
Country Club, did not timely comply with the notice of claim
required by Wis. Stat. § 893.80(1)(a). Id., ¶1. On that basis,
the circuit court dismissed Country Club's claim even though
Sanitary District did not raise noncompliance with the statute
in responsive pleadings. Id. On review, we concluded that
"noncompliance with the notice of claim statute is an
affirmative defense that must be set forth in a responsive
pleading." Id., ¶3. Because Sanitary District did not do so,
we concluded that failing to comply with the notice of claim
statute could not be raised as a defense to Country Club's
inverse condemnation claim. Id.
¶72 Maple Grove teaches that timeliness of compliance with
a notice of claim statute was DOT's issue to raise as an
affirmative defense. Id. And, as an affirmative defense, it
was DOT's burden to prove that notice was not timely. See Red
Top Farms v. DOT, 177 Wis. 2d 822, 826, 503 N.W.2d 354 (1983)
(concluding that the burden of proof for the affirmative defense
rested on DOT).
¶73 Under our liberal pleading rules, one could stretch
the Answer, which never mentions Wis. Stat. § 88.87(2)(c) or
Wis. Stat. § 32.10, to encompass raising a § 88.87(2)(c)
affirmative defense. However, Southport averred that it timely
complied with the notice of claim statute, and as we explained
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in Maple Grove and Red Top Farms, it was DOT's affirmative
burden to prove that Southport did not do so. Maple Grove, 386
Wis. 2d 425, ¶34; Red Top Farms, 177 Wis. 2d at 826.
¶74 In our review of DOT's motion for Judgment on the
Pleadings, we begin with the Verified Complaint. Southport
repeatedly averred that damage to its property occurred both
from DOT's faulty construction and from DOT's faulty maintenance
of the frontage road it constructed.29 Southport also 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."30 Southport alleged continuing damage due to
construction and due to maintenance of 120th Avenue.
¶75 The Answer and Affirmative Defense do not mention Wis.
Stat. § 88.87(2)(c) or state a date on which "damage occurred."
Notwithstanding that omission, DOT convinced the circuit court,
court of appeals and now those in the majority opinion that
"occurred" means "happened" and that the damage happened when
construction was complete in 2009. Three courts have
disregarded the rules of civil procedure relative to motions for
judgment on the pleadings by failing to accept the averments in
29 Verified Complaint, ¶¶7, 10, 15, 17, 19, 28.
30 Id., ¶28.
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the Verified Complaint and to evaluate defensive pleadings
fairly.
¶76 In that latter regard, DOT's motion for judgment on
the pleadings actually was a motion for judgment on its
affirmative defense. Intertwined with that defense are factual
questions about DOT's ongoing maintenance of 120th Avenue and
whether that maintenance factually affected Southport's damage.
There also are legal questions about the meaning of "occurred"
in Wis. Stat. § 88.87(2)(c) during construction and how that
term is interpreted when continued damage is alleged to have
been caused by DOT's on-going maintenance of 120th Avenue.
¶77 It is not possible to decide the legal questions of
statutory interpretation before deciding the factual questions
about which types of actions by DOT caused damage to Southport.
Therefore, DOT's affirmative defense cannot be determined solely
by review of the pleadings. Accordingly, DOT did not carry its
burden as proponent of the affirmative defense and its motion
should have been denied.
III. CONCLUSION
¶78 This is not a case that can be decided on the
pleadings. I write in dissent because basic rules of civil
procedure that control when judgment on the pleadings may be
granted have been disregarded by three courts. In addition, the
majority opinion creates a new element for an inverse
condemnation claim and converts an affirmative defense into a
pleading requirement for Southport. When this court disregards
basic rules of civil procedure, changes pleading rules and
13
No. 2019AP130.pdr
overrules precedent of this court without so much as a by-your-
leave in order to obtain the outcome it prefers, it causes
confusion throughout the court system that goes far beyond
Southport's claim for inverse condemnation. Accordingly, I
respectfully dissent.
¶79 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this
dissent.
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1