Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary District ( 2019 )

2019 WI 43
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2296
COMPLETE TITLE: Maple Grove Country Club Incorporated,
Plaintiff-Appellant-Petitioner,
County of La Crosse,
Involuntary-Plaintiff,
v.
Maple Grove Estates Sanitary District,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 382 Wis. 2d 270,915 N.W.2d 729
(2018 – unpublished)
OPINION FILED: April 23, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 21, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: La Crosse
JUDGE: Elliott M. Levine
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Mark J. Steichen and Boardman & Clark LLP, Madison;
with whom on the brief is Patrick J. Houlihan and Lawyers At
Work, LLC, LaCrosse. There was an oral argument by Mark J.
Steichen.
For the defendant-respondent, there was a brief filed by
Kraig A. Byron and Von Briesen & Roper, S.C., Madison. There was
an oral argument by Kraig A. Byron.
2019 WI 43
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2296
(L.C. No. 2014CV389)
STATE OF WISCONSIN : IN SUPREME COURT
Maple Grove Country Club Incorporated,
Plaintiff-Appellant-Petitioner,
County of La Crosse, FILED
Involuntary-Plaintiff,
APR 23, 2019
v.
Sheila T. Reiff
Clerk of Supreme Court
Maple Grove Estates Sanitary District,
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANN WALSH BRADLEY, J. The petitioner, Maple Grove
Country Club, Inc., seeks review of an unpublished, per curiam
decision of the court of appeals affirming the circuit court's
order that dismissed the Country Club's inverse condemnation
claim against Maple Grove Estates Sanitary District.1 The
1Maple Grove Country Club Inc. v. Maple Grove Estates
Sanitary Dist., No. 2016AP2296, unpublished slip op. (Wis. Ct.
App. Apr. 19, 2018) (per curiam) (affirming an order of the
circuit court for La Crosse County, Elliott M. Levine, Judge).
No. 2016AP2296
Country Club asserts that the court of appeals erred in
upholding the dismissal based on its noncompliance with Wis.
Stat. § 893.80(1d) (2013-14),2 the notice of claim statute,
despite the fact that the Sanitary District did not raise
noncompliance with the statute in a responsive pleading.
¶2 Specifically, the Country Club contends that
noncompliance with the notice of claim statute is an affirmative
defense that must be set forth in a responsive pleading lest it
be waived and that it cannot instead be initially raised by
motion. Conversely, the Sanitary District argues that
noncompliance with the notice of claim statute is a
jurisdictional prerequisite to filing suit and is not waived by
the failure to plead it as an affirmative defense in a
responsive pleading.
¶3 We conclude that noncompliance with the notice of
claim statute is an affirmative defense that must be set forth
in a responsive pleading. Because the Sanitary District failed
to set forth the defense in its answer and it has not amended
its answer to include it, such a defense is deemed waived.
¶4 Accordingly, we reverse the decision of the court of
appeals and remand to the circuit court for further proceedings.
I
¶5 In 1978, the Town of Hamilton formed the Sanitary
District. Approximately twelve years later, Tony Ceresa, the
2All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2016AP2296
Country Club's predecessor in title,3 constructed a sewage
treatment plant along with related collection and outflow
facilities for the purpose of serving the Country Club property4
along with a residential development.
¶6 The sewer system was initially operated by the Country
Club. However, the Town provided for the election of Sanitary
District commissioners in 1997 and took over operation of the
system in 1998. At that time, the Sanitary District adopted a
"Sewer Use and User Charge Ordinance," which obligated the
Sanitary District to either lease or purchase the sewer system
from the Country Club.
¶7 Consequently, the Sanitary District and the Country
Club entered a five-year lease, ending on December 31, 2004.
Prior to the expiration of the initial lease, the parties
negotiated a second five-year lease, extending the term to
December 31, 2009.
¶8 As the second lease neared its end, the Country Club
informed the Sanitary District that it did not wish to renew the
lease. Instead, the Country Club determined that it was in its
"best interest to sell the Sanitary District facility and
collection system."
3 Ceresa transferred the property to the Country Club in
1995, and remained the president of the Country Club.
4 Consisting of approximately 181 acres, the property
contained a golf course, banquet facility, indoor swimming pool,
meeting rooms, exercise room, pro shop, bar, and restaurant.
3
No. 2016AP2296
¶9 Likewise, the Sanitary District determined that it
would not be renewing the lease, and informed the Country Club
of this position by letter. It explained that "[t]he Board of
Commissioners is not in a position to enter into any kind of
long term agreement until we have an examination of the
collection system and broader understanding as to what will be
required by the DNR in regard to upgrades to the wastewater
treatment plant" and that money would need to be set aside for
improvements.
¶10 The Country Club responded to the Sanitary District
with a letter of its own. It indicated that it was willing to
either sell or continue leasing the sewer system to the Sanitary
District, but that payment of some kind would be necessary:
Given the fact that I am relatively certain that the
Town/District is not going to build a new sanitary
facility, that means that the District will continue
to use Maple Grove's sanitary facility. Obviously,
they have to pay a lease payment for that. If their
intent is to operate it without paying any rent, then
essentially the Town/Sanitary District is condemning,
i.e. taking for a public purpose, the private property
of Maple Grove Country Club. The law requires that
the District would pay Maple Grove Country Club a fair
market value for the facility.
¶11 Despite further communications and offers between the
parties, no agreement was reached before the lease expired. The
Sanitary District continued to physically occupy and operate the
4
No. 2016AP2296
sewer system, and has not paid any rent to the Country Club
since 2010.5
¶12 On July 19, 2011, the Country Club served the Sanitary
District with a document entitled "Notice of Circumstances of
Claim Pursuant to Wis. Stat. § 893.80(1)(a)."6 The notice stated
that "the Sanitary District refuses to negotiate a fair and
equitable purchase price, Lease Agreement, and/or User Agreement
with respect to said Wastewater Treatment facility . . . ." It
further asserted that the Sanitary District "continues to occupy
and use said property belonging to Claimant contrary to Section
32.10, Wis. Stats.,[7] and Article I, Section 13 of the Wisconsin
5
In 2015, the Sanitary District presented the Country Club
with a check for $14,000, but the Country Club did not accept
the check.
6
At the time the notice was filed, the relevant statute was
numbered Wis. Stat. § 893.80(1)(a). Effective April 12, 2012,
the statute was renumbered as § 893.80(1d)(a). See 2011 Wis.
Act 162, § 1g. After renumbering, the substance remained the
same.
7
Wisconsin Stat. § 32.10, entitled "Condemnation
proceedings instituted by property owner," provides:
If any property has been occupied by a person
possessing the power of condemnation and if the person
has not exercised the power, the owner, to institute
condemnation proceedings, shall present a verified
petition to the circuit judge of the county wherein
the land is situated asking that such proceedings be
commenced. The petition shall describe the land, state
the person against which the condemnation proceedings
are instituted and the use to which it has been put or
is designed to have been put by the person against
which the proceedings are instituted. A copy of the
petition shall be served upon the person who has
occupied petitioner's land, or interest in land. The
(continued)
5
No. 2016AP2296
Constitution" without paying any rent or just compensation.8 The
notice specified that no claim for damages was made "at this
time." The Sanitary District did not respond to the Notice of
Circumstances of Claim.
¶13 Almost three years after filing the Notice of
Circumstances of Claim, the Country Club initiated this action
in the circuit court. It brought two causes of action against
the Sanitary District, one for inverse condemnation9 and the
other for unlawful sanitary sewer charges and levy of taxation.
In its complaint, the Country Club asserted that it had
petition shall be filed in the office of the clerk of
the circuit court and thereupon the matter shall be
deemed an action at law and at issue, with petitioner
as plaintiff and the occupying person as defendant.
The court shall make a finding of whether the
defendant is occupying property of the plaintiff
without having the right to do so. If the court
determines that the defendant is occupying such
property of the plaintiff without having the right to
do so, it shall treat the matter in accordance with
the provisions of this subchapter assuming the
plaintiff has received from the defendant a
jurisdictional offer and has failed to accept the same
and assuming the plaintiff is not questioning the
right of the defendant to condemn the property so
occupied.
8Article I, Section 13 of the Wisconsin Constitution sets
forth: "The property of no person shall be taken for public use
without just compensation therefor."
9Inverse condemnation is a procedure by which a property
owner petitions the circuit court to institute condemnation
proceedings. Koskey v. Town of Bergen, 2000 WI App 140, ¶1 n.1,
237 Wis. 2d 284, 614 N.W.2d 845. It "allows a property owner to
institute condemnation proceedings against anyone who possesses,
but fails to exercise, the power of condemnation." Id., ¶5.
6
 No. 2016AP2296
"provided the requisite notice under Section 893.80, Wis.
Stats[,]" specifically referencing the July 19, 2011, Notice of
Circumstances of Claim.
¶14 The Sanitary District filed an answer to the
complaint, as well as a counterclaim. In its answer, it raised
six affirmative defenses: (1) the Country Club failed to state
a claim for which relief can be granted; (2) the Country Club's
claims are barred by the doctrine of laches; (3) the applicable
statute of limitations bars the claims; (4) sovereign immunity
bars the Country Club's claims; (5) the claims are barred by the
doctrine of res judicata; and (6) the Country Club lacks
standing. It denied the Country Club's allegation that the
notice of claim statute had been complied with, but did not
affirmatively plead that the Country Club had failed to comply
with the statute.
¶15 Both parties filed summary judgment motions. The
Sanitary District sought summary judgment on its counterclaim
that it was entitled to recover delinquent sanitary sewer
charges from the Country Club. Conversely, the Country Club
argued that it was entitled to partial summary judgment
declaring that the Sanitary District had acquired the Country
Club's property via inverse condemnation.
¶16 In its brief opposing the Country Club's motion for
partial summary judgment, the Sanitary District raised an
assertion that the Country Club had failed to comply with the
notice of claim procedures set forth in Wis. Stat. § 893.80.
The Sanitary District argued that the Notice of Circumstances of
7
No. 2016AP2296
Claim filed by the Country Club suffered from two defects: that
it was not timely filed and that it did not contain an itemized
statement of the relief sought as is required by
§ 893.80(1d)(b).10 In response, the Country Club contended that
the Sanitary District had waived the defense of noncompliance
with the notice of claim statute by failing to plead the defense
in its answer.
¶17 After holding an evidentiary hearing, the circuit
court dismissed the Country Club's inverse condemnation claim.
It concluded that the Country Club had failed to comply with the
notice of claim statute. Specifically, it determined that the
notice was "untimely and incomplete." In the circuit court's
view, the notice was untimely because it was received over 120
days after the event giving rise to the claim and it was
incomplete because it did not include an itemized statement of
the relief sought. The circuit court did not address the
Country Club's argument that the Sanitary District had waived
the defense.
¶18 The Country Club sought leave to file an interlocutory
appeal, and the court of appeals granted its petition.11 On
appeal, the court of appeals limited the issues to "whether the
Sanitary District waived its notice of claim defense by failing
10
Wisconsin Stat. § 893.80(1d)(b) provides in relevant part
that a notice of claim must contain "the address of the claimant
and an itemized statement of the relief sought . . . ."
11 See Wis. Stat. § 808.03(2).
8
No. 2016AP2296
to plead it, and whether the District's answer should be
considered as amended to present that defense so as to conform
to the evidence, under Wis. Stat. § 802.09(2)."
¶19 Ultimately, the court of appeals affirmed the circuit
court's dismissal of the inverse condemnation claim. It
determined that the "Sanitary District did not waive its notice
of claim defense by failing to plead it." Maple Grove Country
Club Inc. v. Maple Grove Estates Sanitary Dist., No. 2016AP2296,
unpublished slip op., ¶1 (Wis. Ct. App. Apr. 19, 2018) (per
curiam).
¶20 The court of appeals reached this conclusion with
significant reservations. Specifically, it determined that it
was bound to follow Lentz v. Young, 195 Wis. 2d 457, 536
N.W.2d 451 (Ct. App. 1995), even though it "questioned" the
correctness of the Lentz decision. Maple Grove Country Club,
No. 2016AP2296, unpublished slip op., ¶1.
¶21 In reviewing relevant case law, the court of appeals
observed Lentz's broad and unqualified holding that "a defendant
may raise an affirmative defense by motion." Id., ¶5 (quoting
Lentz, 195 Wis. 2d at 467). Following Lentz, it concluded that
"the District preserved its notice of claim affirmative defense
by raising it on summary judgment." Maple Grove Country Club,
No. 2016AP2296, unpublished slip op., ¶6.
¶22 However, the court of appeals opined that "Lentz
almost certainly misinterpreted prior case law in a way that is
not consistent with relevant statutes." Id., ¶7. Namely, it
stated that "[t]he statutes do not appear to contemplate that
9
No. 2016AP2296
affirmative defenses will be asserted for the first time in a
motion for summary judgment that follows the pleadings." Id.,
¶8.
¶23 In conclusion, the court of appeals summarized its
concern that Lentz upends the statutory scheme:
In summary, the seemingly unqualified rule that was
applied in Lentz obliterates the statutory scheme.
Lentz replaces that scheme with a simple rule that
affirmative defenses need not be pled, but instead
need only be raised by motion before trial. But Lentz
does not cite any statute or case law that supports
such a rule. Nonetheless, we are bound by our own
prior decision and may not overrule, modify, or
withdraw its language. Cook v. Cook, 208 Wis. 2d 166,
189-90, 560 N.W.2d 246 (1997). We are permitted to
"signal" our "disfavor," but may not overrule the
prior decision. Id. at 190.
Maple Grove Country Club, No. 2016AP2296, unpublished slip op.,
¶14.
II
¶24 We are asked to determine whether noncompliance with
the notice of claim statute is an affirmative defense or a
jurisdictional prerequisite to filing suit. If it is a defense,
then we additionally are called upon to determine whether the
Sanitary District waived the defense of noncompliance with the
notice of claim statute by failing to plead the defense in its
answer.
¶25 Our review of these questions requires the
interpretation of Wisconsin's notice of claim and civil
procedure statutes. Statutory interpretation presents a
question of law that this court reviews independently of the
10
No. 2016AP2296
determinations rendered 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
¶26 For context, we begin by setting forth background on
the notice of claim statute and its requirements. We address
next whether the notice of claim statute provides for an
affirmative defense or whether it establishes a jurisdictional
prerequisite to filing suit. Subsequently, we consider whether
noncompliance with the notice of claim statute must be raised in
a responsive pleading lest it be waived. This requires an
examination of the notice of claim statute's relationship with
the civil procedure statutes.
A
¶27 Wisconsin's notice of claim statute is found in Wis.
Stat. § 893.80(1d). It has two provisions that serve different
purposes. Yacht Club at Sister Bay Condo. Ass'n, Inc. v. Vill.
of Sister Bay, 2019 WI 4, ¶19, 385 Wis. 2d 158, 922 N.W.2d 95.
When referring to the statute as a whole, we refer to it as the
"notice of claim statute" in accordance with past case law. Id.
¶28 The first part of the notice of claim statute is the
"notice of injury" provision, set forth in Wis. Stat.
§ 893.80(1d)(a), which affords governmental entities the
opportunity to investigate and evaluate potential claims.12
12
We treat the "Notice of Circumstances of Claim" filed by
the Country Club as the "notice of injury" required by Wis.
Stat. § 893.80(1d)(a).
11
No. 2016AP2296
Griffin v. Milwaukee Transp. Servs., Inc., 2001 WI App 125, ¶15,
246 Wis. 2d 433, 630 N.W.2d 536. It provides that a person who
has a potential claim against an enumerated governmental entity
must notify the governmental entity of the claim "[w]ithin 120
days after the happening of the event":
(1d) Except as provided in subs. (1g), (1m), (1p) and
(8), no action may be brought or maintained against
any volunteer fire company organized under ch. 213,
political corporation, governmental subdivision or
agency thereof nor against any officer, official,
agent or employee of the corporation, subdivision or
agency for acts done in their official capacity or in
the course of their agency or employment upon a claim
or cause of action unless:
(a) Within 120 days after the happening of the event
giving rise to the claim, written notice of the
circumstances of the claim signed by the party, agent
or attorney is served on the volunteer fire company,
political corporation, governmental subdivision or
agency and on the officer, official, agent or employee
under s. 801.11. Failure to give the requisite notice
shall not bar action on the claim if the fire company,
corporation, subdivision or agency had actual notice
of the claim and the claimant shows to the
satisfaction of the court that the delay or failure to
give the requisite notice has not been prejudicial to
the defendant fire company, corporation, subdivision
or agency or to the defendant officer, official, agent
or employee . . . .
§ 893.80(1d)(a).
¶29 Subsection (1d)(b) is the "notice of claim" provision,
which provides information that gives a municipality the
opportunity to compromise and settle a claim in order to avoid
the burdens of litigation. Griffin, 246 Wis. 2d 433, ¶15. It
requires that, in addition to the notice of injury set forth in
Wis. Stat. § 893.80(1d)(a), a potential claimant must file the
12
No. 2016AP2296
following specific information with the governmental actor
against whom the claim is made:
A claim containing the address of the claimant and an
itemized statement of the relief sought is presented
to the appropriate clerk or person who performs the
duties of a clerk or secretary for the defendant fire
company, corporation, subdivision or agency and the
claim is disallowed.
§ 893.80(1d)(b).
B
¶30 As an additional threshold matter, we must clarify
whether the notice of claim statute creates an "affirmative
defense" or a jurisdictional prerequisite to filing suit.
¶31 The Sanitary District argues that case law compels the
conclusion that the notice of claim statute creates a
jurisdictional prerequisite to filing suit rather than an
affirmative defense. It cites Mannino v. Davenport, 99
Wis. 2d 602, 299 N.W.2d 823 (1981), for this proposition. In
Mannino, the court determined that a lack of notice of injury in
the context of a claim made against state employees "is a
defense which is not waived by the failure to affirmatively
assert it as part of a responsive pleading."13 Id. at 609.
13
Mannino v. Davenport, 99 Wis. 2d 602, 299 N.W.2d 823
(1981), examined Wis. Stat. § 895.45 (1975-76), which has since
been renumbered as § 893.82 (2013-14). In relevant part,
§ 893.82 provides:
(3) Except as provided in sub. (5m), no civil action
or civil proceeding may be brought against any state
officer, employee or agent for or on account of any
act growing out of or committed in the course of the
discharge of the officer's, employee's or agent's
(continued)
13
No. 2016AP2296
¶32 There is a crucial difference between the statute at
issue in Mannino, Wis. Stat. § 893.82(3), and the statute at
issue here, § 893.80(1d). Section 893.82(3) requires strict
compliance while § 893.80(1d) does not. Importantly,
§ 893.80(1d) contains a provision allowing for an action to
survive if the defendant had actual notice of the claim and was
not prejudiced by any defect in the notice that was filed. See
§ 893.80(1d)(a).
¶33 Indeed, the Mannino court based its analysis in part
on the conclusion that "the terms of sec. 895.45 provide that no
action may be brought unless a notice is served upon the
attorney general." Mannino, 99 Wis. 2d at 612 (emphasis added);
see Wis. Stat. § 893.82(3). Thus, because strict compliance is
necessary and there is no way around the statute's notice
requirements, as there is with the actual notice and lack of
prejudice provision of the notice of claim statute at issue
duties, and no civil action or civil proceeding may be
brought against any nonprofit corporation operating a
museum under a lease agreement with the state
historical society, unless within 120 days of the
event causing the injury, damage or death giving rise
to the civil action or civil proceeding, the claimant
in the action or proceeding serves upon the attorney
general written notice of a claim stating the time,
date, location and the circumstances of the event
giving rise to the claim for the injury, damage or
death and the names of persons involved, including the
name of the state officer, employee or agent
involved. Except as provided under sub. (3m), a
specific denial by the attorney general is not a
condition precedent to bringing the civil action or
civil proceeding.
14
No. 2016AP2296
here, lack of compliance with § 893.82(3) cannot be waived. See
Mannino, 99 Wis. 2d at 612. The fact that § 893.80(1d) does not
require strict compliance is significant. Accordingly,
Mannino's interpretation of § 893.82(3) is inapposite to the
issue before us and does not compel the conclusion the Sanitary
District seeks.
¶34 Rather, case law favors the Country Club's assertion
that the notice of claim statute provides for an affirmative
defense. An affirmative defense is "a defendant's assertion
raising new facts and arguments that, if true, will defeat the
plaintiff's or prosecution's claim even if all allegations in
the complaint are true." State v. Watkins, 2002 WI 101, ¶39,
255 Wis. 2d 265, 647 N.W.2d 244 (quoting Black's Law Dictionary
151 (7th ed. 1999)).
¶35 Noncompliance with the notice of claim statute fits
within this definition, especially given our case law
determining that the statute is a "'condition in fact requisite
to liability,' but is not a condition required for stating a
cause of action." Rabe v. Outagamie Cty., 72 Wis. 2d 492, 498,
241 N.W.2d 428 (1976) (citing Majerus v. Milwaukee Cty., 39
Wis. 2d 311, 317, 159 N.W.2d 86 (1968)). Case law has further
referred to noncompliance with the notice of claim statute as a
"defense." Weiss v. City of Milwaukee, 79 Wis. 2d 213, 228, 255
N.W.2d 496 (1977); Elkhorn Area Sch. Dist. v. East Troy Cmty.
Sch. Dist., 110 Wis. 2d 1, 5, 327 N.W.2d 206 (Ct. App. 1982).
We have also stated that it must be "affirmatively pled." Thorp
15
No. 2016AP2296
v. Town of Lebanon, 2000 WI 60, ¶24, 235 Wis. 2d 610, 612
N.W.2d 59.
¶36 We therefore clarify that noncompliance with the
notice of claim statute set forth in Wis. Stat. § 893.80 is an
affirmative defense and not a jurisdictional prerequisite to
filing suit.
C
¶37 Having clarified that noncompliance with the notice of
claim statute is properly categorized as an affirmative defense,
we turn next to consider the question of whether the defense
must be raised in a responsive pleading, as the Country Club
argues, or if it can instead be initially raised by motion, as
the Sanitary District contends.
¶38 Answering this question requires us to interpret
Wisconsin's civil procedure statutes. Statutory interpretation
begins with the language of the statute. State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110. If the meaning of the statute is plain, we need
not further the inquiry. Id.
¶39 We begin our examination of the civil procedure
statutes with Wis. Stat. § 802.02(3), entitled "Affirmative
defenses," which provides:
In pleading to a preceding pleading, a party shall set
forth affirmatively any matter constituting an
avoidance or affirmative defense including but not
limited to the following: accord and satisfaction,
arbitration and award, assumption of risk,
contributory negligence, discharge in bankruptcy,
duress, estoppel, failure of a condition subsequent,
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No. 2016AP2296
failure or want of consideration, failure to mitigate
damages, fraud, illegality, immunity, incompetence,
injury by fellow servants, laches, license, payment,
release, res judicata, statute of frauds, statute of
limitations, superseding cause, and waiver. When a
party has mistakenly designated a defense as a
counterclaim or a counterclaim as a defense, the
court, if justice so requires, shall permit amendment
of the pleading to conform to a proper designation.
If an affirmative defense permitted to be raised by
motion under s. 802.06(2) is so raised, it need not be
set forth in a subsequent pleading.
¶40 We observe two notable features of Wis. Stat.
§ 802.02(3) in the context of this case. First, the plain
statutory language sets forth a general rule that affirmative
defenses "shall" be set forth in a "pleading to a preceding
pleading," or in more common terms, a responsive pleading such
as an answer. § 802.02(3).
¶41 Second, we observe that Wis. Stat. § 802.02(3)'s list
of affirmative defenses that must be set forth in a responsive
pleading does not include noncompliance with the notice of claim
statute. However, the statute explicitly provides that the list
is nonexhaustive. § 802.02(3) (setting forth a list of defenses
that is "including but not limited to the following" (emphasis
added)).
¶42 Having set forth the general rule of Wis. Stat.
§ 802.02(3), we turn next to § 802.06(2)(a), which provides:
Every defense, in law or fact, except the defense of
improper venue, to a claim for relief in any pleading,
whether a claim, counterclaim, cross claim, or 3rd-
party claim, shall be asserted in the responsive
pleading thereto if one is required, except that the
following defenses may at the option of the pleader be
made by motion:
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No. 2016AP2296
1. Lack of capacity to sue or be sued.
2. Lack of jurisdiction over the subject matter.
3. Lack of jurisdiction over the person or property.
4. Insufficiency of summons or process.
5. Untimeliness or insufficiency of service of
summons or process.
6. Failure to state a claim upon which relief can be
granted.
7. Failure to join a party under s. 803.03.
8. Res judicata.
9. Statute of limitations.
10. Another action pending between the same
parties for the same cause.
¶43 Wisconsin Stat. § 802.06(2) confirms the general rule
of § 802.02(3): that affirmative defenses shall be raised in a
responsive pleading. However, § 802.06(2) provides an exception
to that general rule, which indicates that the ten enumerated
defenses "may at the option of the pleader be made by motion."
If any of the listed defenses are raised by motion,
§ 802.06(2)(b) dictates that such a motion "shall be made before
pleading if a further pleading is permitted."
¶44 For our purposes, it is significant that the ten
enumerated defenses that may be raised by motion do not include
noncompliance with the notice of claim statute. Unlike the list
of affirmative defenses in Wis. Stat. § 802.02(3), the list of
ten defenses in § 802.06(2)(a) is exhaustive. There is no
language indicating that the list is "not limited to" the
enumerated defenses as there is in § 802.02(3).
18
No. 2016AP2296
¶45 The plain language of these two statutes in tandem
therefore indicates that affirmative defenses, except the ten
enumerated defenses, must be raised in a responsive pleading.
Because noncompliance with the notice of claim statute is not
one of the ten enumerated defenses, it likewise must be raised
in a responsive pleading.
¶46 Despite the clear statutory language, the court of
appeals arrived at an opposite result. Although it questioned
the decision and signaled its disfavor, the court of appeals
determined that it was bound by Lentz, 195 Wis. 2d 457. Maple
Grove Country Club, No. 2016AP2296, unpublished slip op., ¶14;
see Cook, 208 Wis. 2d at 190. In Lentz, the court of appeals
stated that "a defendant may raise an affirmative defense by
motion." Lentz, 195 Wis. 2d at 467. As the court of appeals
here correctly observed, such a broad statement is inconsistent
on its face with Wis. Stat. §§ 802.02(3) and 802.06(2). See
Maple Grove Country Club, No. 2016AP2296, unpublished slip op.,
¶7.
¶47 The Lentz court cited Robinson v. Mount Sinai Medical
Center, 137 Wis. 2d 1, 16-17, 402 N.W.2d 711 (1987), for the
broad proposition that any affirmative defense may always be
raised by motion. However, Robinson's language explicitly
limits its determination to the defense of statute of
limitations, which was the specific defense raised in that case:
"The affirmative defense of the statute of limitations must be
raised in a pleading, or by a motion, or be deemed waived." Id.
at 17. This is an unremarkable proposition given the language
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of Wis. Stat. § 802.06(2)(a)9., which provides that statute of
limitations is a defense that may be raised by motion prior to a
responsive pleading.
¶48 Thus, Lentz misinterpreted this passage from Robinson
to apply to all affirmative defenses. Lentz cannot be
reconciled with the plain statutory language of Wis. Stat.
§§ 802.02(3) and 802.06(2). Accordingly, we overrule Lentz
because it allows a defendant to initially raise by motion an
affirmative defense not listed in § 802.06(2).14
¶49 In an attempt to compel the opposite conclusion, the
Sanitary District argues first that by denying in its answer the
Country Club's allegation of compliance with the notice of claim
statute, it has sufficiently raised the defense. We disagree.
A plaintiff is not required to plead compliance with the notice
of claim statute in the first instance. Rabe, 72 Wis. 2d at
498. The Sanitary District's denial was the result of the mere
fortuity that the Country Club pled compliance.
¶50 Instead of simply denying the allegation of
compliance, case law establishes that "[a] governmental entity
must affirmatively plead that a plaintiff did not comply" with
the notice of claim statute. Thorp, 235 Wis. 2d 610, ¶24;
14
The Lentz court's holding that "an employer's intentional
sexual harassment of an employee is not an 'accident' within the
parameters of the [Worker's Compensation Act]" retains vitality.
Lentz v. Young, 195 Wis. 2d 457, 462, 536 N.W.2d 451 (Ct. App.
1995). However, that conclusion was subsequently limited by
Peterson v. Arlington Hosp. Staffing, Inc., 2004 WI App 199,
¶¶16-21, 276 Wis. 2d 746, 689 N.W.2d 61.
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Weiss, 79 Wis. 2d at 228 ("The city was required to plead the
lack of compliance with sec. 895.43(1), Stats., as a defense.").
As analyzed above, Wis. Stat. §§ 802.02(3) and 802.06(2) compel
this result.
¶51 After failing to raise the notice of claim statute in
a responsive pleading, the Sanitary District could have amended
its answer once "as a matter of course at any time within 6
months after the summons and complaint [were] filed . . . ."
Wis. Stat. § 802.09(1). It could have done so any time
thereafter "by leave of court," which "shall be freely given at
any stage of the action when justice so requires." Id. Yet it
has not availed itself of that option.
¶52 Even if the Sanitary District could raise
noncompliance with the notice of claim statute in a motion for
summary judgment, its attempt to do so here would still be
unsuccessful. Wisconsin Stat. § 802.06(2)(b) dictates that such
a motion "shall be made before pleading if a further pleading is
permitted." The Sanitary District brought its motion far later
than this.
¶53 The Sanitary District contends next that Anderson v.
City of Milwaukee, 208 Wis. 2d 18, 559 N.W.2d 563 (1997),
compels the conclusion that noncompliance with the notice of
claim statute cannot be waived. This argument misses the mark.
¶54 In Anderson, this court addressed the damages
limitation in Wis. Stat. § 893.80(3),15 determining that it "is
15 Wisconsin Stat. § 893.80(3) provides:
(continued)
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not an affirmative defense that is deemed waived if not raised
in a responsive pleading or by motion." Id., ¶21. Significant
in the Anderson court's analysis was its observation that the
damages cap in § 893.80(3) is not a complete bar to recovery.
Id. (citing Snyder v. City of Minneapolis, 441 N.W.2d 781, 788
(Minn. 1989) ("[A]s the cap also does not bar plaintiff's action
completely it would appear Wright and Miller's surprise factor
does dictate the cap need not be pled as an affirmative
defense."). Stated differently, § 893.80(3) does not prevent a
plaintiff from maintaining an action, but rather limits the
amount of damages that may be recovered.
¶55 In contrast, if noncompliance with either the notice
of injury or notice of claim provision of Wis. Stat.
§ 893.80(1d) is properly raised and established and the
Except as provided in this subsection, the amount
recoverable by any person for any damages, injuries or
death in any action founded on tort against any
volunteer fire company organized under ch. 181 or 213,
political corporation, governmental subdivision or
agency thereof and against their officers, officials,
agents or employees for acts done in their official
capacity or in the course of their agency or
employment, whether proceeded against jointly or
severally, shall not exceed $50,000. The amount
recoverable under this subsection shall not exceed
$25,000 in any such action against a volunteer fire
company organized under ch. 181 or 213 or its
officers, officials, agents or employees. If a
volunteer fire company organized under ch. 181 or 213
is part of a combined fire department, the $25,000
limit still applies to actions against the volunteer
fire company or its officers, officials, agents or
employees. No punitive damages may be allowed or
recoverable in any such action under this subsection.
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plaintiff fails to demonstrate actual notice and lack of
prejudice, then dismissal of the action is required.16
Anderson's analysis was specific to the language, history, and
context of § 893.80(3) and therefore does not inform our
analysis of § 893.80(1d).
¶56 Accordingly, we conclude that noncompliance with the
notice of claim statute is an affirmative defense that must be
set forth in a responsive pleading. Because the Sanitary
District failed to set forth the defense in its answer and it
has not amended its answer to include it, such a defense is
deemed waived.17
¶57 We therefore reverse the decision of the court of
appeals and remand the cause to the circuit court for further
proceedings.
16
That is, "[f]ailure to give the requisite notice shall
not bar action on the claim if the fire company, corporation,
subdivision, or agency had actual notice of the claim and the
claimant shows to the satisfaction of the court that the delay
or failure to give the requisite notice has not been
prejudicial . . . ." Wis. Stat. § 893.80(1d)(a).
17
The Country Club also raised in its petition for review
the issue of whether it complied with the substantive
requirements of the notice of claim statute. It argues that the
Sanitary District had actual notice of the need to institute
condemnation proceedings and the relief that the Country Club
sought, and that the Sanitary District was not prejudiced by the
lack of a timely formal notice. Because we deem waived the
Sanitary District's defense of noncompliance with the notice of
claim statute, we need not address whether the Country Club met
the statute's substantive requirements.
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By the Court.—The decision of the court of appeals is
reversed and the cause remanded to the circuit court.
¶58 SHIRLEY S. ABRAHAMSON, J., withdrew from
participation.
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