Property – condemnation — sovereign immunity

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Wisconsin Court of Appeals

Civil

Property – condemnation — sovereign immunity

Sovereign immunity bars a property’s declaratory judgment action.

“Lees and Artis-Wergin, on which Aesthetic relies, are both inapposite because the Department of Transportation here consistently asserted its sovereign-immunity defense: in its letter transmitting its application for a writ of assistance, in its timely answer, and in its timely motion to dismiss. See WIS. STAT. RULE 802.06(8)(a) (‘A defense of lack of jurisdiction over the person … is waived only if any of the following conditions is met: … 2. The defense is neither made by motion under this section nor included in a responsive pleading.’) (emphasis added). See also WIS. STAT. RULE 801.06 (‘A court of this state having jurisdiction of the subject matter may … exercise jurisdiction in an action … over any person who appears in the action and waives the defense of lack of jurisdiction over his or her person as provided in s. 802.06(8).’). Thus, assuming without deciding that seeking a writ of assistance before the filing of an answer or the making of a motion asserting a sovereign-immunity defense required a ‘special appearance,’ as Aesthetic in essence argues, the Department’s letter of January 11, 2013, transmitting the application for writ of assistance to the circuit court was certainly that ‘special appearance’ because it asserted, as we have seen, that the Department ‘is not waiving any objections or defenses to Plaintiff’s Complaint, including the defense of sovereign immunity.’ A more clear assertion and preservation of the sovereign-immunity defense is hard to imagine.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2052 Aesthetic and Cosmetic Plastic Surgery Center LLC v. DOT

Dist. I, Milwaukee County, Witkowiak, J., Fine, J.

Attorneys: For Appellant: Harlow, R. Duane, Madison; Beachy, Sara K., Madison; For Respondent: Marcuvitz, Alan, Milwaukee; Roschke, Andrea H., Milwaukee