Time-barred – Notice of Claim

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WI Supreme Court

Case Name: Southport Commons, LLC, v. Wisconsin Department of Transportation

Case No.: 2021 WI 52

Focus: Time-barred – Notice of Claim

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. 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) was not timely filed.

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.

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.

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. 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.

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

Affirmed

Concur:

Dissent: ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.

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Derek A Hawkins is Corporate Counsel, at Salesforce.