Time-barred Notice of Claim.

Byline: Derek Hawkins

WI Supreme Court

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

Case No.: 2021 WI 52

Focus: Time-barred Notice of Claim

The petitioner, Southport Commons, LLC (Southport), seeks review of a published court of appeals decision that affirmed the circuit court's grant of the Department of Transportation's (DOT) motion for judgment on the pleadings. Southport asserts that the court of appeals erred in determining that its notice of claim pursuant to Wis. Stat. 88.87(2)(c) (2017-18) was not timely filed.

Wisconsin Stat. 88.87(2)(c) provides that a property owner damaged by the construction or maintenance of a highway or railroad grade must file a notice of claim "within 3 years after the alleged damage occurred" as a prerequisite to filing a lawsuit. Southport contends that its notice of claim, filed within three years of when the damage was discovered, is sufficient. Alternatively, Southport asserts that the damage to its land occurred continuously over time and that the actual time the damage occurred in this case was undetermined and requires remand to the circuit court for fact finding.

DOT disagrees, arguing that "occurred" is not synonymous with "discovered" and that under a plain reading of the statute, Southport's notice of claim was not timely filed. It further contends that Southport did not raise its alternative argument in the circuit court or court of appeals, and as a result this court should not consider it.

We conclude that...