Waiver of Affirmative Defense

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WI Court of Appeals – District IV

Case Name: Maple Grove Country Club Incorporated, et al. v. Maple Grove Estates Sanitary District

Case No.: 2016AP2296

Officials: Lundsten, P.J., Blanchard, and Kloppenburg, JJ.

Focus: Waiver of Affirmative Defense

Maple Grove Country Club, Inc., appeals a non-final order dismissing its statutory claim of inverse condemnation. Addressing only the limited issue on which we granted leave to appeal, we conclude that respondent Maple Grove Estates Sanitary District did not waive its notice of claim defense by failing to plead it. We reach this conclusion based on a 1995 decision of this court that we question, but must follow. The Club’s complaint alleged a claim of inverse condemnation under WIS. STAT. § 32.10 (2015-16). The circuit court held that this claim must be dismissed because the Club failed to comply with the applicable notice of claim statute, WIS. STAT. § 893.80(1d).

On appeal, the Club argues that the District waived the notice of claim defense by failing to plead it in the answer. The Club relies on case law holding that such a defense must be affirmatively pled or is considered waived. See Thorp v. Town of Lebanon, 2000 WI 60, ¶24, 235 Wis. 2d 610, 612 N.W.2d 59. In response, one of the District’s arguments is that raising such a defense by summary judgment motion is sufficient. Although we regard the case law on which the District relies as wrongly decided, we conclude that we are bound by that case law and, accordingly, that the District did not waive its affirmative defense.

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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.