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,

 v.

Wisconsin Department of Transportation,

 Defendant-Respondent.

FILED

JUN 8, 2021

Sheila T. Reiff

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 

 

1 Southport 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 

2

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 

 

2 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
No. 2019AP130 

3

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.
No. 2019AP130 

4

¶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 postconstruction 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. 
No. 2019AP130 

5

¶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.
No. 2019AP130 

6

¶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. 
No. 2019AP130 

7

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 
No. 2019AP130 

8

accumulation and discharge of surface waters flooding or watersoaking 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 
No. 2019AP130 

9

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. 
No. 2019AP130 

10

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
No. 2019AP130 

11

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 

 

5 See, 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-termcare 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.")
No. 2019AP130 

12

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 
No. 2019AP130 

13

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. 

 

6 An 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.
No. 2019AP130 

14

§ 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 
No. 2019AP130 

15

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 
No. 2019AP130 

16

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 
No. 2019AP130 

17

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.
No. 2019AP130 

18

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.
No. 2019AP130.pdr

1

¶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 

 

1 Verification 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-yourleave 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.
No. 2019AP130.pdr

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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 
No. 2019AP130.pdr

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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. 
No. 2019AP130.pdr

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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 
No. 2019AP130.pdr

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overrules precedent of this court without so much as a by-yourleave 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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