Court Error – Motion to Dismiss

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WI Court of Appeals – District III

Case Name: The Yacht Club at Sister Bay Condominium, Association, Inc. v. Village of Sister Bay

Case No.: 2017AP000140

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Court Error – Motion to Dismiss

The Yacht Club at Sister Bay Condominium Association, Inc. (the Association) appeals an order granting the Village of Sister Bay’s motion to dismiss. The circuit court concluded the Village was entitled to dismissal of the Association’s claims because: (1) the Association failed to provide a written notice of injury within the 120-day period set forth in WIS. STAT. § 893.80(1d)(a) (2015-16);  and (2) the Association failed to present evidence indicating that the Village was not prejudiced by the Association’s failure to timely provide a written notice of injury.

We agree with the circuit court that the Association failed to provide the Village with a timely written notice of injury, as required by WIS. STAT. § 893.80(1d)(a). However, the court erred by determining, in the context of a motion to dismiss, that the Association was required to present evidence regarding lack of prejudice. We also reject the Village’s alternative argument that dismissal was proper because the Association failed to show that it filed an itemized statement of the relief it sought, as required by § 893.80(1d)(b). Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.