Southport Commons, LLC v. DOT

2021 WI 52

SUPREME 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 46
PDC 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 52

NOTICE
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.

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¶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
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 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.")

11
 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
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 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.

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 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. § 32.10

required. 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

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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