960 N.W.2d 17
Wis.2021Background:
- Southport Commons owns ~45.22 acres in Kenosha County that was bisected when DOT relocated an I-94 frontage road during a 2008–2009 construction project.
- A pre-construction survey identified three wetland areas; a 2016 post-construction survey showed six wetland areas, including three newly created wetlands and expansion of the original wetlands.
- Southport alleged it had no knowledge of the new/expanded wetlands until the 2016 survey and claimed inverse condemnation based on DOT's construction and ongoing maintenance.
- Southport filed a notice of claim under Wis. Stat. § 88.87(2)(c) on March 2, 2017; DOT denied the claim and Southport sued for inverse condemnation.
- The circuit court granted DOT’s motion for judgment on the pleadings (holding the notice was untimely); the court of appeals affirmed, and the Wisconsin Supreme Court granted review and affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "occurred" in Wis. Stat. § 88.87(2)(c) | "Occurred" equals "discovered"; filing within 3 years of discovery suffices | "Occurred" means when the damage happened/took place, not when discovered | "Occurred" means when the damage happens/takes place (discovery is not the trigger) |
| Timeliness of Southport's notice of claim | Notice filed within 3 years of discovery (2016→2017) so timely | Damage happened by 2009; notice filed too late | Notice untimely as pleaded; judgment on the pleadings proper because complaint alleged discovery in 2016 but not that damage occurred within 3 years prior to filing |
| Effect of Pruim v. Town of Ashford | Pruim supports a discovery-triggered limitation period | Pruim is factually distinguishable and not controlling here | Pruim distinguished: there discovery occurred contemporaneously with occurrence; it does not control when discovery is long after occurrence |
| Whether continuous/gradual damage created a factual dispute | Alternatively argued that damage occurred continuously over time, so claim period may be tolled/reset | Southport failed to develop or plead continuous-occurrence facts in circuit court or court of appeals | Southport did not meaningfully develop the continuous-damage theory in lower courts; no genuine issue of material fact was pled, so dismissal was proper |
Key Cases Cited
- Pruim v. Town of Ashford, 168 Wis. 2d 114, 483 N.W.2d 242 (Ct. App. 1992) (applied discovery-based trigger where discovery occurred immediately after the damaging event)
- State ex rel. Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633, 681 N.W.2d 110 (Wis. 2004) (sets out rules of statutory interpretation)
- Maple Grove Country Club Inc. v. Maple Grove Ests. Sanitary Dist., 386 Wis. 2d 425, 926 N.W.2d 184 (Wis. 2019) (noncompliance with notice-of-claim statute is an affirmative defense)
- Lins v. Blau, 220 Wis. 2d 855, 584 N.W.2d 183 (Ct. App. 1998) (discusses § 88.87 purpose and legislative history)
- Kremers-Urban Co. v. Am. Emp.'s Ins. Co., 119 Wis. 2d 722, 351 N.W.2d 156 (Wis. 1984) (ordinary meaning of "occurrence")
- Maxey v. Redevelopment Auth. of Racine, 94 Wis. 2d 375, 288 N.W.2d 794 (Wis. 1980) (elements of inverse condemnation claim)