                                                                        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                                      (2018 – unpublished)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,

                                              16
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     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:


                                         17
                                                                   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).

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                                                                     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
                                           19
                                                                         No.    2016AP2296



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.


                                              20
                                                                           No.     2016AP2296



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)
                                                21
                                                                            No.     2016AP2296



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.


                                                22
                                                                      No.       2016AP2296



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.


                                           23
                                                               No.     2016AP2296



     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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    No.   2016AP2296




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