Plain meaning or ’causes confusion’: Supreme Court disagrees on DOT property damage case

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Although the majority of the Wisconsin Supreme Court agreed a Kenosha company didn’t have a claim against the Wisconsin Department of Transportation for property damage in a recent decision, the three dissenting justices said the majority’s opinion is going to cause confusion throughout the court system.

The high court ruled in Southport Commons v. Wisconsin Department of Transportation on Tuesday. Southport owns owns about 45 acres of undeveloped land near Interstate 94 in Kenosha County, which it believes the DOT damaged during road construction in 2008 and 2009. Southport discovered an increase in the size of  wetlands on the land in 2016 and filed a notice of claim in 2017 for alleged damage to property.

The DOT didn’t respond, and Southport then filed an inverse-condemnation lawsuit. The DOT argued that the claim was not filed in a timely manner as required by Wis. Stat. § 88.87(2)(c), which permits a property owner with flooded or water-soaked land because of highway construction to file a claim within three years after the alleged damage occurred. Southport filed a claim when the damage was discovered, not when it occurred, the DOT said. The circuit court agreed and granted the DOT’s motion for judgment. The Court of Appeals affirmed the circuit court’s decision.

Majority: Occurred means when damage happened

Upon appeal before the state Supreme Court, Southport and the DOT offered two different definitions of “occurred” as used in the statute. Southport defined it as “to be found to exist or appear,” whereas the DOT said “something that takes place” or “something that happens.” The majority decided that the word’s common and ordinary usage fits the DOT’s definition.

“It is not only the dictionary that supports such a determination, but it is also our case law,” Justice Ann Walsh Bradley wrote. “… The common usage of the word ‘occurred’ thus has no element of discovery as Southport contends.”

Justices Rebecca Dallet, Brian Hagedorn and Jill Karofsky joined Bradley in her reasoning. They also concluded that Southport failed to meaningfully develop an argument that the damage to its property occurred gradually over several years, and as a consequence, did not raise a genuine issue of material fact as to the date of the damage.

“(W)hen DOT filed its motion for judgment on the pleadings, Southport needed to do something to create a factual dispute,” Bradley wrote. “Arguing only that ‘occurred’ means ‘discovered’ was not sufficient.”

The majority affirmed the Court of Appeals and concluded the circuit court properly granted the DOT’s motion for judgment on the pleadings.

Dissent: Majority ‘disregards’ rules of civil procedure

In her dissent, Justice Pat Roggensack said the majority opinion gives rise a new element for an inverse-condemnation claim because Wis. Stat. § 32.10, which governs condemnation proceedings instituted by a property owner, doesn’t list the date that alleged damage occurred as an element of a claim. Roggensack also wrote that the majority converted an affirmative defense — noncompliance with a notice of claim statute — 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,” Roggensack wrote.

Chief Justice Annette Ziegler and Justice Rebecca Bradley joined in the dissent. Follow @WLJReporter