Southport Commons, LLC v. DOT

2020 WI App 26

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP130

†Petition for Review filed

Complete Title of Case:

SOUTHPORT COMMONS, LLC,

PLAINTIFF-APPELLANT,†

V.

WISCONSIN DEPARTMENT OF TRANSPORTATION,

DEFENDANT-RESPONDENT.

Opinion Filed: April 15, 2020
Submitted on Briefs: November 26, 2019

JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: 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.

Respondent
ATTORNEYS: 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.
2020 WI App 26

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.
April 15, 2020
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP130 Cir. Ct. No. 2018CV345

STATE OF WISCONSIN IN COURT OF APPEALS

SOUTHPORT COMMONS, LLC,

PLAINTIFF-APPELLANT,

V.

WISCONSIN DEPARTMENT OF TRANSPORTATION,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Kenosha County:
DAVID M. BASTIANELLI, Judge. Affirmed.

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

¶1 GUNDRUM, J. 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
No. 2019AP130

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.”

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP130

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

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No. 2019AP130

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.’”).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
2
In its reply brief, Southport cites to State v. Anderson, 2005 WI 54, 280 Wis. 2d 104,
695 N.W.2d 731, in claiming “[t]he ordinary definition of ‘occur’ is ‘to take place, come about’ or
‘to be found to exist or appear.” Id., ¶36 (citing Occur, THE AMERICAN HERITAGE DICTIONARY
OF THE ENGLISH LANGUAGE (3d ed. 1992)). Southport then adds: “Thus, the statutory language
requires that the claim be filed within three years after the alleged damage was ‘found to exist’ or
was discovered.”

Anderson does not aid Southport; in fact, it undermines Southport’s argument. The
question before the court in Anderson was whether the mens rea element of the crime in that case
had “take[n] place” within the state. Anderson, 280 Wis. 2d 104, ¶32. While it is true the Anderson
court stated that “[t]he dictionary definition of ‘occur’ is ‘[t]o take place, come about’ or ‘[t]o be
found to exist or appear,” there was no issue in that case related to when the mens rea element was
discovered, and the court in no way treats the occurrence of the mens rea element as meaning the
discovery of that element. Instead, the court treats “occurs” as being synonymous with “takes
place” throughout its decision. See id., ¶¶36, 46, 47, 50. Likewise, for the reasons stated herein it
is clear to us that the statute uses “occur” as meaning “take place.”

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No. 2019AP130

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
3
Although the unambiguous meaning of “occurred” in WIS. STAT. § 88.87(2)(c) needs no
additional support, a review of § 88.87(2)(d), the paragraph immediately following § 88.87(2)(c),
nonetheless provides it. Paragraph (d) provides:

Failure to give the requisite notice by filing a claim under par. (c)
does not bar action on the claim if the … [DOT] had actual notice
of the claim within 3 years after the alleged damage occurred and
the claimant shows to the satisfaction of the court that the delay or
failure to give the requisite notice has not been prejudicial to the
… [DOT].

Sec. 88.87(2)(d) (emphasis added). We again see the language “within 3 years after the alleged
damage occurred.” We find it very unlikely the legislature would use this language allowing for
an action to advance where DOT had “actual notice of the claim within 3 years after the alleged
damage occurred” if the legislature had intended an open-ended “discovery-of-the-damage-by-the-
property-owner” rule when it wrote “within 3 years after the alleged damage occurred” in para. (c).
See § 88.87(2)(c), (d).

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No. 2019AP130

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 (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. 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. 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. 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

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No. 2019AP130

sought to recover costs for hiring a private contractor to make the needed repairs.
Id. at 119, 122.

¶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. 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 (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, e.g., id. at 122 (“[I]t is undisputed that Pruim discovered the damage
right after the heavy rainstorm …. Pruim responds that this was not a static, one-
time occurrence.” (emphasis added)). We then used “discovered” for much of the
decision instead of the word actually chosen by the legislature, “occurred.” See id.
at 119, 122-23. It appears we felt comfortable using “occurred” and “discovered”
interchangeably because the damage was discovered contemporaneously with when
it occurred, as we noted that it was “undisputed that Pruim discovered the damage
right after the heavy rainstorm of March 13, 1990,” and thus “the town claim[ed]
that he had ninety days from that date [i.e., the date the damage also “occurred”] to
file the notice of claim.” Id. at 122.

4
Had we meant for “occurred” and “discovered” to have two distinct meanings, like in the
case now before us, it would have been unnecessary for us to say “occurred” at all in the phrase
“after the damage occurred and is discovered,” Pruim v. Town of Ashford, 168 Wis. 2d 114, 119,
483 N.W.2d 242 (Ct. App. 1992), because if damage is discovered it quite obviously has already
occurred.

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No. 2019AP130

¶13 The focus of our decision in Pruim was not whether the notice of
claim time period begins to run when damage occurs as opposed to when it is
discovered—indeed there would have been no point in addressing this question as
the occurrence and discovery were contemporaneous. The question before us was
whether WIS. STAT. § 88.87(2)(c) (1991-92) “contemplate[d] allowing a new cause
of action each day the damage continues” or if the then ninety-day limitation period
required the property owner to file a claim within ninety days of the date the damage
first occurred, March 13, 1990. Pruim, 168 Wis. 2d at 122-23. We concluded the
latter. Id. at 123. As the State points out, “Because the discovery and occurrence
happened at the same time [in Pruim], the Pruim court did not decide what the
appropriate deadline would be when discovery occurred after the occurrence.”
Because Pruim did not address a question similar to that at issue in this case—
whether, in a situation where damage is discovered long after it occurs, the notice
of claim time limit begins to run when the damage occurs or when it is
discovered5—we conclude that Pruim’s treatment of the word “discovered” as
interchangeable with “occurred” is not appropriate for this case.

¶14 Southport also suggests the legislature must have agreed with our
Pruim decision referring to “occurred” as “discovered” because approximately a
year after we issued the decision, the legislature modified WIS. STAT. § 88.87(2)(c)
to change the ninety-day period for filing a claim to three years yet did nothing to
directly undermine our use of the term “discovered” in place of “occurred.” We
disagree for two reasons. First, if the legislature was aware of Pruim, it would also
have been aware that the damage in that case occurred and was discovered on the

5
The Pruim decision, for example, provides us with no reason to believe that had Pruim
been absent from his home during and for the month following the March 13 storm and related
property damage that we would have concluded that the limitation period did not begin to run until
Pruim returned home and discovered the damage.

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No. 2019AP130

same date, so our interchangeable use of “occurred” and “discovered” would not
have alerted it to a need to modify language in the statute to address a situation like
that now before us, where damage was discovered long after it occurred. Second,
the legislative history of § 88.87(2)(c) and our reading of it in Lins v. Blau, 220
Wis. 2d 855, 861, 584 N.W.2d 183 (Ct. App. 1998), are directly contrary to
Southport’s speculation as to the legislature’s intent.6

¶15 In Blau, we determined that “[t]he legislature made [the change from
90 days for filing a claim to three years] with the intent to provide the landowner
with ‘sufficient time to discover the damage.’” Id. (citing LEGISLATIVE COUNCIL
SPECIAL COMMITTEE NOTE related to 1993 Wis. Act 456, § 109 (emphasis added)).
This determination appears well-founded as the committee note we referred to in
Blau states in larger part:

The [Legislative Council’s Special Committee on Drainage
District Laws] concluded that, if construction occurs in the
winter or in a dry season, the property owner may have no
way to learn of the damage until after the 90-day period has
passed. Therefore, the bill changes the statute to provide a
3-year period for filing a claim, instead of a 90-day period,
to allow the property owner sufficient time to discover the
damage.

LEGISLATIVE COUNCIL SPECIAL COMMITTEE NOTE related to 1993 Wis. Act 456,
§ 109 (emphasis added).

6
Because the plain language of WIS. STAT. § 88.87(2)(c) is unambiguous, we need not
resort to legislative history to illuminate the meaning of para. (c). That said, “legislative history is
sometimes consulted to confirm or verify a plain-meaning interpretation.” State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, ¶51, 271 Wis. 2d 633, 681 N.W.2d 110. In this case,
we refer to legislative history not only to provide confirmation of our plain language reading, but
also to respond to Southport’s erroneous speculation as to the legislature’s intent in revising this
statute in 1994.

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No. 2019AP130

¶16 The legislative history and our reading of it in Blau support our plain
language interpretation that with the 1994 statutory change, the legislature intended
that a property owner’s right to file a claim be extended from ninety days to three
years after damage occurred but at three years be extinguished. The legislature took
a lag in discovery into account in providing an additional two years and nine months
for a property owner to discover damage and file a related claim. Thus, the
legislature fully intended what it said—that the limitation period would run three
years from when the damage occurred—because that extension from ninety days to
three years would “allow the property owner sufficient time to discover the
damage.” See Blau, 220 Wis. 2d at 861 (citing LEGISLATIVE COUNCIL SPECIAL
COMMITTEE NOTE related to 1993 Wis. Act 456, § 109). The legislature did not
intend an open-ended time period that begins to accrue upon some later “discovery”
of damage by a property owner. And as we stated in Blau, WIS. STAT. § 88.87(2)(c)
“sets forth the time period in which notice must be given for the claimant to preserve
his or her right to proceed.” Blau, 220 Wis. 2d at 868 (emphasis added). That “time
period” is three years from the when the damage occurred, as the statute says, not
three years from when it was discovered.

By the Court.—Order affirmed.

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