               IN THE SUPREME COURT, STATE OF WYOMING

                                           2014 WY 90

                                                            APRIL TERM, A.D. 2014

                                                                    July 16, 2014

ANITA HARMON, as an Individual
and as Personal Representative of the
Estate of EUELLA POTTER, deceased,

Appellant
(Plaintiff),

v.
                                                   S-13-0208
STAR VALLEY MEDICAL CENTER,
STAR VALLEY CARE CENTER,
AMY BORT, C.N.A., JULIE COOPER,
R.N., and DR. KITCHNER P. HEAD,

Appellees
(Defendants).


                      Appeal from the District Court of Lincoln County
                          The Honorable Timothy C. Day, Judge


Representing Appellant:
      W. Keith Goody, Esq., Cougar, Washington; Robert E. Schroth, Sr., of Schroth &
      Schroth, Jackson, Wyoming. Argument by Mr. Schroth.

Representing Appellees:
      W. Henry Combs III and Andrew F. Sears of Murane & Bostwick, LLC, Casper,
      Wyoming. Argument by Mr. Combs.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.



* Chief Justice at time of oral argument
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Anita Harmon, acting as the personal representative for her mother’s
estate, filed suit against the Star Valley Medical and Care Centers1 and several of their
employees (collectively “Appellees”), claiming that their negligence injured her mother
and caused her death. Before filing the complaint, Ms. Harmon submitted a claim as
required by the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. § 1-39-
113 (LexisNexis 2013), the validity of which became the central issue in the case. The
district court granted summary judgment, determining that it did not have subject matter
jurisdiction because the claim was neither signed under oath as required by the WGCA
nor certified as required by the Wyoming Constitution.

[¶2] This matter presents one of the first opportunities for the Court to study the most
recent amendments to the WGCA, which became effective on July 1, 2010. Based upon
our solicitous review of what is statutorily required for a governmental claim to be valid,
we find that the claim in this case was not executed under oath as required by § 1-39-
113(e). However, our examination of the WGCA also compels us to revisit this Court’s
precedent concerning whether the claim requirements set forth in the WGCA and
Wyoming Constitution are jurisdictional, or rather conditions precedent to filing suit that
are nonjurisdictional substantive requirements and can be waived. We conclude that the
claim requirements of the statute and constitution are the latter, and we therefore overrule
our precedent to the extent that it has characterized the claim requirements to be
jurisdictional.

[¶3] Although the claim did not meet statutory and constitutional requirements, we find
that Appellees failed to adequately raise the deficiencies in it as an affirmative defense,
and that they therefore waived that defense. We reverse and remand.

                                                 ISSUES

[¶4] While the parties present several issues for our review, we find the following
dispositive:

1.     Did the claim meet the requirements of Wyo. Stat. Ann. § 1-39-113(e) and Article
16, § 7 of the Wyoming Constitution?

2.      Was the district court deprived of subject matter jurisdiction because the claim did
not strictly comply with the WGCA and Wyoming Constitution?

3.     Did Appellees waive their affirmative defense that the claim was not executed as
required by the WGCA and Wyoming Constitution?

1
    These governmental entities are also known as the North Lincoln County Hospital District.


                                                      1
                                              FACTS

[¶5] Ms. Harmon’s mother Euella Potter was a resident of Star Valley Care Center.
She lived there from March 3, 2008 until her death on July 15, 2010. On July 9, 2010,
Ms. Potter fell while being assisted out of bed. Approximately eleven hours after the fall,
she was taken to the hospital emergency room, where an emergency physician discovered
that she had suffered fractures to her femur and hip. She underwent surgery to repair
them two days later. Unfortunately, she passed away on July 15, 2010, four days after
her surgery.2

[¶6] Ms. Harmon presented a governmental claim to the Star Valley Medical and Care
Centers on September 12, 2011. While the claim was signed by Ms. Harmon, it was not
executed under oath as required by § 1-39-113(e), which would have also satisfied the
requirements of the Wyoming Constitution. Rather, the claim was signed under penalty
of “paying” and was merely “acknowledged” by a notary.

[¶7] A claim was also presented to the Wyoming Medical Review Panel on November
15, 2011, but Appellees waived their right to review by the panel, which permitted
Appellant to file suit.3 Ms. Harmon filed a complaint in the district court for Lincoln
County on March 26, 2012. In the complaint, she acknowledged that Star Valley
Medical and Care Centers are governmental entities and averred full compliance with the
WGCA and Wyoming Constitution. A copy of the claim was attached.

[¶8] Appellees answered the complaint, admitting that the Star Valley Medical and
Care Centers are governmental entities, and that the remaining Appellees are their
employees. All of the remaining allegations, including Ms. Harmon’s allegation that she
had fully complied with the WGCA, were generally denied. Appellees also raised
various affirmative defenses, including one indicating that “[t]hese defendants reserve the
right to challenge the plaintiff’s compliance with the governmental claims act.” At the
time Appellees answered, Appellant would have had approximately three months before
the two-year limitation period for filing a governmental claim expired during which she
could have filed a new claim. Wyo. Stat. Ann. § 1-39-113(a).



2
 Ms. Harmon was appointed personal representative of her mother’s estate for the separate probate case.
However, she did not seek appointment as personal representative for the purpose of pursuing a wrongful
death action in the instant case until Appellees moved for summary judgment.
3
  The Medical Review Panel claim is not in the record, but the Review Panel Act requires that claims
submitted to it contain different information than that required by the Governmental Claims Act, and
those claims are submitted to a different agency. Compare Wyo. Stat. Ann. § 9-2-1519(a)(ii) (LexisNexis
2013) with Wyo. Stat. Ann. § 1-39-113(b).


                                                   2
[¶9] After some discovery was conducted, Appellees filed a motion for summary
judgment under W.R.C.P. 56 on December 10, 2012, roughly nine months after receiving
the complaint. In that motion, they argued specifically for the first time that Ms.
Harmon’s claim was defective because it was not signed under oath as required by Wyo.
Stat. Ann. § 1-39-113(e) or certified under penalty of perjury as required by Article 16, §
7 of the Wyoming Constitution. In response, Ms. Harmon argued that her claim
substantially complied with the signature and certification requirements of the WGCA
and Wyoming Constitution, and that the use of the word “paying” was just a
typographical error that was not fatal to her claim.

[¶10] The district court held a hearing on April 11, 2013, and on July 18, 2013, granted
Appellees’ motion for summary judgment. It found that the claim was facially invalid
because Ms. Harmon failed to sign under oath or penalty of perjury as required by the
current WGCA and the Wyoming Constitution. The court concluded, based on our
precedent, that “[a]bsent a valid and timely notice of claim, [it] lacks jurisdiction to
consider [Ms. Harmon’s] claims.”

[¶11] Ms. Harmon timely appealed from the order granting summary judgment.

                              STANDARD OF REVIEW

[¶12] This appeal requires us to review the summary judgment granted to Appellees.
We have often stated that standard of review:

             We review a summary judgment in the same light as the
             district court, using the same materials and following the
             same standards. We examine the record from the vantage
             point most favorable to the party opposing the motion, and we
             give that party the benefit of all favorable inferences that may
             fairly be drawn from the record. A material fact is one which,
             if proved, would have the effect of establishing or refuting an
             essential element of the cause of action or defense asserted by
             the parties. If the moving party presents supporting summary
             judgment materials demonstrating no genuine issue of
             material fact exists, the burden is shifted to the non-moving
             party to present appropriate supporting materials posing a
             genuine issue of a material fact for trial. We review a grant
             of summary judgment deciding a question of law de novo and
             afford no deference to the district court’s ruling.

Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo. 2011) (citations and
quotation marks omitted). We can affirm an order granting summary judgment on any



                                             3
basis appearing in the record. Magin v. Solitude Homeowner’s Inc., 2011 WY 102, ¶ 20,
255 P.3d 920, 927 (Wyo. 2011).

[¶13] However, this case also presents a question concerning subject matter jurisdiction
and requires us to apply the WGCA and a provision of the Wyoming Constitution. We
therefore set forth the standards of review for those issues.

[¶14] “The existence of subject matter jurisdiction is a question of law that we review de
novo.” Excel Constr., Inc. v. Town of Lovell, 2011 WY 166, ¶ 12, 268 P.3d 238, 241
(Wyo. 2011) (quoting Madsen v. Bd. of Trustees of Mem’l Hosp. of Sweetwater Cnty.,
2011 WY 36, ¶ 9, 248 P.3d 1151, 1153 (Wyo. 2011)). A court’s subject matter
jurisdiction may be challenged at any time. N. Laramie Range Found. v. Converse Cnty.
Bd. of Cnty. Comm’rs, 2012 WY 158, ¶ 22, 290 P.3d 1063, 1073 (Wyo. 2012). “If the
district court lacked subject matter jurisdiction, this Court has jurisdiction on appeal, not
on the merits, but only as to the jurisdictional issue.” Rock v. Lankford, 2013 WY 61, ¶
18, 301 P.3d 1075, 1080 (Wyo. 2013) (quoting Hall v. Park Cnty., 2010 WY 124, ¶ 3,
238 P.3d 580, 581 (Wyo. 2010)). “The absence of subject matter jurisdiction makes
dismissal, rather than affirmance, the proper course.” Hall, ¶ 3, 238 P.3d at 581; see also
Wilson v. Town of Alpine, 2005 WY 57, ¶ 7, 111 P.3d 290, 292 (Wyo. 2005).

[¶15] Statutory construction is also a question of law, and hence the standard of review
is also de novo. Powder River Basin Res. Council v. Wyo. Oil and Gas Conservation
Comm’n, 2014 WY 37, ¶ 19, 320 P.3d 222, 228 (Wyo. 2014). In interpreting statutes,
this Court must endeavor to find the reasonable intent of the drafters. Id. We begin by
examining the ordinary and obvious meaning of the words employed according to their
arrangement and connection. Id. When a statute is sufficiently clear and unambiguous,
we give effect to the plain and ordinary meaning of the words and need not invoke our
longstanding rules of statutory construction. Id.; see also Int’l Ass’n of Firefighters Local
Union No. 279 v. City of Cheyenne, 2013 WY 157, ¶ 9, 316 P.3d 1162, 1166 (Wyo.
2013) (“A statute is clear and unambiguous if its wording is such that reasonable persons
are able to agree on its meaning with consistency and predictability.”).

[¶16] Likewise, “the district court’s interpretation and application of the Wyoming
Constitution presents a question of law that is also reviewed de novo.” Cantrell v.
Sweetwater Cnty. Sch. Dist. No. 2, 2006 WY 57, ¶ 6, 133 P.3d 983, 985 (Wyo. 2006). In
construing constitutional provisions, we follow the same rules that govern the
construction of statutes and are guided primarily by the intent of the drafters, looking first
to the plain and unambiguous language used to discern that intent. Id.

[¶17] Finally, we must determine whether Appellees adequately pled an affirmative
defense, which requires us to interpret a Wyoming Rule of Civil Procedure. We also
review that issue de novo. Weidt v. State, 2013 WY 143, ¶ 21, 312 P.3d 1035, 1040
(Wyo. 2013); Kelly v. Kilts, 2010 WY 151, ¶ 9, 243 P.3d 947, 950 (Wyo. 2010) (citing


                                               4
Busch v. Horton Automatics, Inc., 2008 WY 140, ¶ 13, 196 P.3d 787, 790 (Wyo. 2008));
In re Kite Ranch, LLC v. Powell Family of Yakima, LLC, 2008 WY 39, ¶ 17, 181 P.3d
920, 925 (Wyo. 2008).

                                           DISCUSSION

Compliance with the claim requirements under the WGCA and Wyoming Constitution

[¶18] “[T]his Court has long held that a party seeking to bring an action against a
governmental entity must first comply with the constitutional and statutory requirements
by presenting a notice of claim to the entity.” Brown v. City of Casper, 2011 WY 35, ¶
19, 248 P.3d 1136, 1141 (Wyo. 2011). Since statehood, Wyoming’s constitution has
required governmental claims to have some level of affirmation in order to encourage
honesty and avert the filing of false claims. The original text of the constitution mandated
that:

                       No money shall be paid out of the state treasury except
               upon appropriation by law and on warrant drawn by the
               proper officer, and no bills, claims, accounts or demands
               against the state, or any county, or political sub-division, shall
               be audited, allowed or paid until a full itemized statement in
               writing, verified by affidavit, shall be filed with the officer
               or officers whose duty it may be to audit the same.

Wyo. Const. art. 16, § 7 (Michie 1957) (emphasis added); see Houtz v. Board of Comm’rs
of Uinta Cnty., 11 Wyo. 152, 168, 70 P. 840, 842 (Wyo. 1902). Over a hundred years
ago, in Houtz, we examined this constitutional provision in the context of a governmental
claim and found that “it is plain . . . that the requirement for verification has for its object
a showing of good faith and honesty in the presentation of the bill, and some evidence of
the truth, justness, and correctness of the claim.” 11 Wyo. at 168, 70 P. at 842.

[¶19] In 1970, Article 16, § 7 was amended4 to read as it does today:


4
 At the time of the constitutional amendment in 1970, Wyo. Stat. Ann. § 6-154 (Michie 1957) defined the
crime of “[f]alse certificate, affidavit or statement” as follows:

               Whoever wilfully, corruptly and falsely before an officer, authorized to
               administer oaths, under oath or affirmation, voluntarily makes any false
               certificate, affidavit or statement of any nature, for any purpose, in any
               matter where an oath is authorized to be taken, or whoever wilfully,
               corruptly and falsely, voluntarily makes any false certificate or statement
               of any nature under penalty of perjury, shall be deemed guilty of perjury,
               and shall be imprisoned in the penitentiary not more than five years.


                                                    5
                    No money shall be paid out of the state treasury except
             upon appropriation by law and on warrant drawn by the
             proper officer, and no bills, claims, accounts or demands
             against the state, or any county or political subdivision, shall
             be audited, allowed or paid until a full itemized statement in
             writing, certified to under penalty of perjury, shall be filed
             with the officer or officers whose duty it may be to audit the
             same.

Wyo. Const. art. 16, § 7 (emphasis added). In Cantrell, we analyzed the differences
between the original and amended versions, explaining that:

                     The old constitutional requirement was to “verify” a
             claim by “affidavit.” To “verify” means to “confirm or
             substantiate in law by oath or proof.” Webster’s Third New
             International Dictionary of the English Language
             Unabridged 2543 (2002). Similarly, Black’s Law Dictionary
             1556 (7th ed. 1999) defines “verify” in our context as “to
             confirm or substantiate by oath or affidavit, to swear to the
             truth of.” In turn, an “affidavit” is “a sworn statement in
             writing made esp[ecially] under oath or on affirmation before
             an authorized magistrate or officer[.]” Webster’s Third New
             International Dictionary at 35. And once again, Black’s Law
             Dictionary at 58 contains a similar definition: “A voluntary
             declaration of facts written down and sworn to by the
             declarant before an officer authorized to administer oaths.”
             By contrast, to “certify” is “to attest esp[ecially]
             authoritatively or formally[.]” Webster’s Third New
             International Dictionary at 367. In legal parlance, to “certify”
             means to “authenticate or verify in writing . . . [t]o attest as
             being true or as meeting certain criteria.” Black’s Law
             Dictionary at 220. On its face, the unambiguous intent of the
             amended provision was to allow claims against governmental
             entities to be supported by unsworn certificates, so long as
             such were made “under penalty of perjury,” thus making the
             declarant subject to a charge of perjury under Wyo. Stat. Ann.
             § 6-154. That is what the district court concluded in the
             present case, and to that extent, the district court was correct.

Cantrell, ¶ 10, 133 P.3d at 986. We have long held that Article 16, § 7, including the
language “certified to under penalty of perjury,” applies to claims presented under the
WGCA. See id., ¶ 7, 133 P.3d at 985.



                                             6
[¶20] In 2010, the legislature amended the WGCA to include the following subsection:

                (e) In any claim filed with a governmental entity under this
                act, the claim shall be signed by the claimant under oath in
                substantially the following format:

                I, __________________________, have read and understand
                the provisions of the false swearing statute. I hereby certify
                under penalty of false swearing that the foregoing claim,
                including all of its attachments, if any, is true and accurate.

                ________________________                             _____________
                Signature of Claimant                                   Date

                _________________________
                Printed Name of Claimant

                STATE OF WYOMING                          )
                                                          ) ss.
                COUNTY OF ____________                    )

                Subscribed and sworn to before me, a Notarial Officer, this
                .... day of ......, .....

                _______________________________________
                Notarial Officer

                My Commission Expires:                                    (Seal).

Wyo. Stat. Ann. § 1-39-113(e) (first and third emphasis added).5

[¶21] Thus, before the 2010 amendments to the WGCA, a claim had to only be certified
by the claimant under penalty of perjury, thereby satisfying the requirements of the
Wyoming Constitution. The legislature chose to alter the signature and certification
requirements in its most recent amendments. A valid claim must now be signed under
oath, which can be accomplished by signing under “penalty of false swearing” as set

5
 Section (e), along with other important amendments to the WGCA, became effective July 1, 2010. See
2010 Wyo. Sess. Laws Ch. 27.

        Interestingly, we also note that the online version of the form provided in section (e), via Westlaw
and the Wyoming Legislature’s website (see House Enrolled Act 16 (HB 0066)), shows that “penalty of
false swearing” is emphasized in bold. However, in the LexisNexis paper version of Wyoming’s statutes,
the emphasis has been omitted, we assume inadvertently.


                                                      7
forth in the form provided in the statute. Because claims are now statutorily required to
be signed under oath, the certification requirements of Article 16, § 7 are necessarily
satisfied. See Cantrell, ¶ 10, 133 P.3d at 986. The legislature harmonized claim
requirements under the WGCA with Wyoming’s constitution and current statutes.

[¶22] We believe the legislature required a claim to be executed under penalty of false
swearing rather than under penalty of perjury for good reason. There is a legitimate
question as to whether signing and presenting a false claim would constitute perjury.
Under Wyoming’s current perjury statutes, a false statement must be made in a “judicial,
legislative, or administrative proceeding.” On the other hand, the false swearing statute
imposes criminal liability for making a false statement under oath or under penalty of
false swearing “in a matter where an oath is authorized by law.” Compare Wyo. Stat.
Ann. § 1-2-104 (LexisNexis 2013) (defining “false swearing”) and Wyo. Stat. Ann. § 6-
5-303 (LexisNexis 2013) (false swearing in nonjudicial proceedings) with Wyo. Stat.
Ann. 6-5-301(a)(LexisNexis 2013) (defining “perjury”). 6 If the legislature intended to



6
    Wyoming’s perjury statute, § 6-5-301, provides as follows:

                 A person commits perjury if, while under a lawfully administered oath or
                 affirmation, he knowingly testifies falsely or makes a false affidavit,
                 certificate, declaration, deposition or statement, in a judicial, legislative
                 or administrative proceeding in which an oath or affirmation may be
                 required by law, touching a matter material to a point in question.

(Emphasis added).

Wyo. Stat. Ann. § 6-5-303(c), the false swearing statute, provides as follows:

                 A person who knowingly makes a false certification under W.S. 1-2-104
                 is guilty of a felony punishable by imprisonment for not more than two
                 (2) years, a fine of not more than two thousand dollars ($2,000.00), or
                 both.

Wyo. Stat. Ann. § 1-2-104 is as follows:

                 (a) A matter required or authorized to be supported, evidenced,
                 established or proven by the sworn statement, declaration, verification,
                 certificate, oath or affidavit, in writing of the person making it, other than
                 a deposition, an acknowledgment, an oath of office or an oath required to
                 be taken before a specified official other than a notary public, may be
                 supported, evidenced, established or proven by the person certifying in
                 writing “under penalty of false swearing” that the matter is true. The
                 certification shall state the date and place of execution and the following:

                 “I certify under penalty of false swearing that the foregoing is true”.



                                                        8
require a claimant to subject himself or herself to potential criminal liability for a false
claim, presumably to encourage honesty through fear of criminal prosecution, a
declaration under penalty of perjury might not accomplish that objective.7

[¶23] We turn now to the question of whether the claim submitted by Appellant
complies with the amended statute. Mrs. Potter was injured and Ms. Harmon executed
and presented her claim after the WGCA was amended to include the specific and
unambiguous statutory claim form. Instead of tracking the form provided in § 1-39-
113(e), the claim states that “I, Anita Harmon do hereby declare under penalty of paying
according to the laws of the State of Wyoming that the foregoing is true and correct to the
best of my knowledge,” and it is “acknowledged” by a notarial officer.

[¶24] Ms. Harmon argues that the term “paying” is just a typographical error, and
therefore she substantially complied with the requirements of the WGCA. We do not
find it necessary to conduct a semantic analysis of the possible ways one could intend to
use one word and somehow use another in the modern age of computers and automatic
spelling correction. Our analysis supra confirms that even if “paying” could be
considered a typo of “perjury,” it does not matter because a certification under penalty of
perjury does not meet the requirements of the WGCA that a claim be executed by the
claimant under oath by signing subject to penalty of false swearing. Simply put, it is
patently clear that Ms. Harmon’s claim was not signed under oath, and therefore does not
satisfy the requirements of § 1-39-113(e).

[¶25] Aside from not being signed under penalty of false swearing, the other obvious
flaw with Ms. Harmon’s assertion is that the claim was “acknowledged before me [the
notary] by Anita Harmon.” (Emphasis added). The Wyoming Uniform Law on Notarial
Acts provides the following definitions:




               (b) A person who knowingly makes a false certification under subsection
               (a) of this section is guilty of false swearing in violation of W.S. 6-5-
               303(c).
7
 This Court is, and has been, cognizant of the difference between false swearing and perjury. We long
ago explained:

                        Although the term, false swearing, is used interchangeably with
               perjury, there is a definite distinction, both at common law and under
               usual statutory schemes. The principal distinguishing factor is that
               perjury is committed only in a judicial proceeding whereas false
               swearing is not necessarily committed in a judicial proceeding but is
               rather the giving of false statement under oath.

Nimmo v. State, 603 P.2d 386, 388 (Wyo. 1979).


                                                   9
     Acknowledgment: “[A] declaration by a person that the person has freely and
      voluntarily executed an instrument for the purposes stated therein and, if the
      instrument is executed in a representative capacity, that the person signed the
      instrument with proper authority and executed it as the act of the person or entity
      represented and identified therein and that the person acknowledges that the
      instrument was executed and acknowledged freely and voluntarily.” Wyo. Stat.
      Ann. § 34-26-101(b)(i) (LexisNexis 2013).

     Affirmation: “[A] notarial act, or part thereof, which is legally equivalent to an
      oath and in which an individual at a single time and place: (A) [i]s personally
      known to the notarial officer or identified by the notarial officer through
      satisfactory evidence; and (B) [m]akes a vow of truthfulness or fidelity on penalty
      of perjury, based on personal honor and without invoking a deity or using any
      form of the word ‘swear’.” Wyo. Stat. Ann. § 34-26-101(b)(vii).

        Oath: “[A] notarial act, or part thereof, which is legally equivalent to an
        affirmation and in which an individual at a single time and place: (A) [i]s
        personally known to the notarial officer or identified by the notarial officer
        through satisfactory evidence; and (B) [m]akes a vow of truthfulness or fidelity on
        penalty of perjury while invoking a deity or using any form of the word ‘swear’.”
        Wyo. Stat. Ann. § 34-26-101(b)(xiv).

     Verification upon oath or affirmation: “[A] declaration that a statement is true
      made by a person upon oath or affirmation.” Wyo. Stat. Ann. § 34-26-101(b)(v).
      When a notary invokes the term “signed and sworn to (or affirmed)” it is legally
      sufficient to create a verification upon oath or affirmation. Wyo. Stat. Ann. § 34-
      26-108(a)(iii).

[¶26] The statute governing notarization makes clear that while an oath or affirmation
requires the party to “make a vow of truthfulness or fidelity on penalty of perjury,” there
is no such requirement for an acknowledgment, because a signer must only acknowledge
that the document was signed freely and voluntarily. This is undoubtedly the reason that
the form in the WGCA requires the specific words “subscribed and sworn” to be
contained in the notarized portion of the claim—to ensure that the declarant is subject to
liability under the false swearing statute in order to encourage honesty. See Wyo. Stat.
Ann. § 1-39-113(e).

[¶27] In Cantrell v. Sweetwater, we were confronted with the issue of whether an
affidavit signed under oath by the claimants satisfied the requirement of Article 16, § 7 of
the Wyoming Constitution that claims against governmental entities be “certified to
under penalty of perjury.” 2006 WY 57, ¶ 3, 133 P.3d at 984. There, the claimants
presented a signed claim in which the notary stated “sworn by me upon his oath, says that
the facts alleged in the foregoing instrument are true.” Id., ¶ 5, 133 P.3d at 985.


                                              10
However, the claim did not include the phrase that the claimants had signed “under
penalty of perjury.” Id., ¶¶ 4-5, 133 P.3d at 984-85. We held that the claim complied
with the requirements of Article 16, § 7 even though it did not contain the phrase the
provision called for. We reasoned that “[i]f it is acceptable to state that the facts
supporting a claim are true, it certainly must be acceptable to swear that those facts are
true.” Id, ¶ 11, 133 P.3d at 987 (emphasis in original). Therefore, we concluded:

              This is not a situation where something “almost as good” was
              substituted for actual compliance, and we are not, therefore,
              finding substantial compliance sufficient. Rather, we are
              stating that compliance exceeding the constitutional language
              sufficed. The district court had jurisdiction over the
              governmental claim in this matter.

Id., ¶ 12, 133 P.3d at 987.

[¶28] To the extent it applies after § 1-39-113(e) was enacted, Cantrell is readily
distinguishable. Ms. Harmon did not sign her claim after being administered an oath or
affirmation to the truth of its contents, which might have brought her within the scope of
Wyoming’s false swearing statute if her claim contained false statements. A claim is
not valid unless it does so.

Subject Matter Jurisdiction

[¶29] The district court concluded that the claim was defective, and that it therefore had
no subject matter jurisdiction. Our precedent up to this point supports that result, but we
are obliged to revisit the rulings which compelled the district judge to rule as he did.

[¶30] In Brown, we explained that “[w]hile there is no question that presentation of a
notice of claim is constitutionally and statutorily required before an action can be brought
against a government entity . . . subject matter jurisdiction is invoked upon the filing of a
complaint alleging a claim against a governmental entity.” Brown, ¶ 9, 248 P.3d at 1139.
As a result, we overruled our prior decisions holding that a district court lacks subject
matter jurisdiction over a WGCA claim if the complaint fails to allege compliance with
applicable statutory and constitutional requirements. Id.

[¶31] Today we take another step in our WGCA jurisprudence, and we conclude that
the claim requirements of § 1-39-113 of the WGCA and Article 16, § 7 of the Wyoming
Constitution, although substantive, are not jurisdictional, and that they therefore can be
waived. Accordingly, we overrule Beaulieu v. Florquist, 2004 WY 31, ¶ 9, 86 P.3d 863,
866 (Wyo. 2004) (Beaulieu II); Bell v. Schell, 2004 WY 153, ¶ 34, 101 P.3d 465, 475
(Wyo. 2004); and Wooster v. Carbon County School Dist. No. 1, 2005 WY 47, ¶ 6, 109
P.3d 893, 895 (Wyo. 2005), and their progeny, to the extent that these cases characterize


                                              11
the notice requirements set out in § 1-39-113 of the WGCA and Article 16, § 7 of the
Wyoming Constitution, as jurisdictional.8

[¶32] The WGCA was adopted in 1979 to address “the inherently unfair and inequitable
results which occur in the strict application of the doctrine of governmental immunity,”
which until then prevailed in Wyoming. Wyo. Stat. Ann. § 1-39-102. It has always
provided that “[n]o action shall be brought under this act against a governmental entity
unless the claim upon which the action is based is presented to the entity as an itemized
statement in writing within two (2) years of the date of the alleged act, error, or omission
. . . .” Wyo. Stat. Ann. § 1-39-113(a).

[¶33] In a 1990 case, this Court held that failure to certify a claim under penalty of
perjury as required by the Wyoming Constitution did not deprive the district court of
jurisdiction as argued by the State of Wyoming, which was a party to the case:

                      In the last issue asserted in its appeal, the State
               contends that the trial court did not have jurisdiction to
               proceed because Fleetwood failed to comply with Wyo.
               Const. art. 16, § 7. This constitutional provision requires,
               inter alia, that any claim against the State be “certified to
               under penalty of perjury.” Wyo. Const. art. 16, § 7.
               Specifically, the State asserts that Mr. and Mrs. Martinez,
               acting on behalf of Fleetwood, failed to make the certification
               under penalty of perjury when they first presented their claim
               and that, since proper filing of a claim is a condition
               precedent to suit, their claim cannot be brought because it was
               not properly filed. Wyoming State Highway Department v.
               Napolitano, 578 P.2d 1342 (1978); Awe v. University of
               Wyoming, 534 P.2d 97 (1975); Utah Construction Company
               v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951
               (1933).

                       This particular contention by the State is raised for the
               first time in this appeal. The point was never argued to the
               district court. The State agrees that this is true, but it
               contends that an omission of the correct certification results in
               a failure of subject matter jurisdiction, and the issue can be
               raised at any time in the proceeding. We do not agree with
               this contention. The failure to verify or certify as the
8
 We are very mindful that “[o]verruling prior case law is an act this Court approaches with caution.”
Brown, ¶ 43, 248 P.3d at 1146. But this Court must “be willing to depart from precedent when it is
necessary to vindicate plain, obvious principles of law and remedy continued injustice.” Id. (quotation
marks omitted).


                                                   12
             constitution now reads is nothing more than a defect or an
             irregularity that is not jurisdictional. In re Bear River
             Irrigation District, 51 Wyo. 343, 65 P.2d 686 (1937). The
             effect of that decision is that this alleged defect is not
             jurisdictional and, for that reason, the defense cannot be
             raised for the first time on appeal. Matter of Estate of
             McCue, 776 P.2d 742 (Wyo.1989); Ricci v. New Hampshire
             Insurance Company, 721 P.2d 1081 (Wyo.1986); Dennis v.
             Dennis, 675 P.2d 265 (Wyo.1984); Nickelson v. People, 607
             P.2d 904 (Wyo.1980); Scherling v. Kilgore, 599 P.2d 1352
             (Wyo.1979). We apply our well-established rule concerning
             those issues raised for the first time on appeal, and we reject
             this contention by the State.

Martinez v. City of Cheyenne, 791 P.2d 949, 958 (Wyo. 1990), overruled by Beaulieu II,
¶ 13, 86 P.3d at 868. This decision required the failure to properly certify governmental
claims to be timely raised, and it held that the defense was waived if not. At least in
cases in which time remained to file a new claim, this ruling assured that claimants were
put on notice of certification defects and could file new claims.

[¶34] This state of affairs changed as the result of two appeals involving the same
parties. Beaulieu v. Florquist, 2001 WY 33, 20 P.3d 521 (Wyo. 2001) (Beaulieu I);
Beaulieu II, 2004 WY 31, 86 P.3d 863. In Beaulieu I, a mysterious unsigned document
styled as a governmental claim appeared at the offices of the City of Rawlins about a
week after the accident on which the claim was based. Beaulieu retained counsel, who
filed another claim, and eventually a lawsuit. The trial court granted summary judgment
because the lawsuit was not filed within one year of the mystery claim as required by
Wyo. Stat. Ann. § 1-39-114. Beaulieu I, ¶ 7, 20 P.3d at 525.

[¶35] This Court reversed, holding that claims against a governmental entity had to be
certified under penalty of perjury in compliance with Wyoming Constitution Article 16, §
7, meaning that they have to be signed, which the mystery claim was not. Therefore it
concluded that the claim did not trigger the one-year statute of limitations. Id., ¶ 17, 20
P.3d at 527.

[¶36] This decision proved to be the Beaulieus’ undoing, because on remand, the City
moved again for summary judgment because the claim filed by their attorney was signed
only by him, and not under penalty of perjury. The district judge dismissed the case,
finding that the defective claim deprived the court of subject matter jurisdiction.
Beaulieu II, ¶ 7, 86 P.3d at 866.

[¶37] This Court agreed. It overruled Martinez, and went even further to hold that a
complaint seeking relief under the Governmental Claims Act must also plead compliance


                                             13
with the certification and signature requirements of the state constitution, and that failure
to plead compliance deprived district courts of subject matter jurisdiction. Id., ¶¶ 13-14;
86 P.3d at 868. This led to a number of decisions dismissing cases for failure to either
present a properly executed claim or to allege having done so in the complaint. See
Brown, ¶¶ 34-44, 248 P.3d at 1144-47.9

[¶38] Because the filing of a properly executed claim was now required to confer subject
matter jurisdiction, parties began to engage in what might fairly be described as
gamesmanship when time remained during which a proper claim could be filed. In
Lavatai v. State, 2005 WY 133, 121 P.3d 121 (Wyo. 2005), the plaintiff failed to sign the
claim under penalty of perjury. The State’s answer denied “the validity of said claim”
and that “said claim complied with Wyoming law,” and asserted that the court lacked
subject matter jurisdiction. Id., ¶ 3, 121 P.3d at 122-23. Lavatai’s attorney served
interrogatories which should have resulted in disclosure of the flaws in his claim. The
defendants did not answer the interrogatories, or provided what can best be described as
evasive responses. Id., ¶¶ 3-4, 121 P.3d at 123. On the date the two-year period during
which Lavatai could have filed a proper claim ended, the State filed a motion for
summary judgment, which was eventually granted. Id., ¶ 5, 121 P.3d at 123. This Court
affirmed, holding that counsel for Appellees had no duty to point out the flaw in the
claim. Id., ¶¶ 12-13, 121 P.3d at 125.

[¶39] However, Justice Kite wrote a spirited concurrence expressing grave concerns:

                         I feel compelled, however, to comment about the
                State’s tactics in this case. The State had numerous
                opportunities to alert Mr. Lavatai to the problem with his
                governmental claim, including: in the State risk manager’s
                initial response; in its answer to his civil complaint; and in its
                responses to his specific interrogatories. In what appears to
                be a calculated effort to delay Mr. Lavatai’s recognition of his

9
  See, e.g., Wilson v. Town of Alpine, 2005 WY 57, 111 P.3d 290 (Wyo. 2005) (dismissing appeal for lack
of subject matter jurisdiction because the claim did not meet the requirements of the constitution—it was
neither signed by the claimants nor certified to under penalty of perjury); Lavatai v. State, 2005 WY 133,
121 P.3d 121 (Wyo. 2005) (claimant failed to sign the claim and certify it under penalty of perjury as
required by the WGCA and constitution); Jauregui v. Mem’l Hosp. of Sweetwater Cnty., 2005 WY 59, ¶
7, 111 P.3d 914, 916 (Wyo. 2005) (finding in part that the claim was not certified to under penalty of
perjury as required by the constitution and therefore the district court correctly dismissed the cause of
action); Wooster, ¶ 6, 109 P.3d at 895-96 (reaffirming that § 1-39-113 is a nonclaim statute, meaning that
a defective notice of claim cannot be cured via the relation back doctrine after the two year period has
passed); Bell, ¶ 34, 101 P.3d at 468 (the right to sue ceases to exist when the time period expires and no
proper notice has been presented and cannot be resurrected by the later presentation of a valid notice of
claim); Yoak v. Ide, 2004 WY 32, 86 P.3d 872 (Wyo. 2004) (claim was constitutionally void for lack of
certification under penalty of perjury, reaffirming that a claim that does not meet the constitutional
signature and certification requirements is not a valid claim under the act).


                                                     14
technical error until after it was too late to correct it, the State
obscured its position on the validity of his governmental
claim. Granted, Mr. Lavatai does not direct us to authority
showing the State’s risk manager had an affirmative
obligation to alert him about the error when she responded, in
the first instance, to his governmental claim. Similarly, the
question of whether the State’s answer to his complaint,
together with the affirmative defense alleging the district
court lacked subject matter jurisdiction, was sufficiently
definite is, perhaps, open to argument. See e.g., Harris v.
Grizzle, 599 P.2d 580, 583 (Wyo. 1979); Romero v. Schulze,
974 P.2d 959, 964 (Wyo. 1999).

                             .   .     .

       In response to Mr. Lavatai’s equitable estoppel
arguments, the State claims it had no duty to provide legal
advice to an opponent and, absent an affirmative
misrepresentation or concealment of facts of which it had
superior knowledge, it did nothing wrong. It is true that the
State was not obligated to provide legal advice to Mr.
Lavatai, but it did have a legal duty to respond to his
discovery requests.      Mr. Lavatai requested the facts,
witnesses, and writings in support of the State’s affirmative
defense. Clearly, Mr. Lavatai’s failure to personally sign his
governmental claim under penalty of perjury was a fact which
supported the State’s affirmative defense that the district
court did not have subject matter jurisdiction over the matter.
W.R.C.P. 33 obligated the State to answer Mr. Lavatai’s
interrogatory within 30 days and Rule 3.4 of the Wyoming
Rules of Professional Conduct placed the responsibility upon
the State’s attorneys to “make reasonably diligent effort to
comply with a legally proper discovery request by an
opposing party[.]” The State did not, in good faith, comply
with its discovery obligations.

      The record is replete with evidence showing that the
State willfully withheld the information about its defense
from Mr. Lavatai, in hopes that the two-year period under the
Governmental Claims Act would expire before he realized his
mistake. The State did not respond to his interrogatories in
accordance with the rules of civil procedure, and, when it did
respond on behalf of the snowplow operator defendant, it did


                                  15
so in a consciously oblique manner. The State’s actions,
which included conducting discovery, served the purpose of
lulling Mr. Lavatai into believing there was no statute of
limitations problem. This implication was strengthened at a
scheduling conference in January 2003, when the State
indicated that it would file a dispositive motion but did not
specify that the basis for the motion would be a lack of
jurisdiction or expiration of the statute of limitations. Then,
immediately after the two year period ran out, the State filed
its summary judgment motion challenging the district court’s
subject matter jurisdiction. Obviously, the State deliberately
intended to delay Mr. Lavatai’s discovery of the defect in his
claim in order to allow the statute of limitations to expire.

       This conduct resulted in a “win” for the State, but at
what cost? Of course, an attorney for the State, like any
attorney, has the duty to zealously represent his client. See
e.g., Brooks v. Zebre, 792 P.2d 196, 200-01 (Wyo. 1990).
The language we used in Kath v. Western Media, Inc., 684
P.2d 98, 100-01 (Wyo. 1984), quoting Virzi v. Grand Trunk
Warehouse and Cold Storage Co., 571 F.Supp. 507, 512
(E.D.Mich.1983) is instructive on how an attorney should
balance these obligations:

      “ * * * Opposing counsel does not have to deal with
      his adversary as he would deal in the marketplace.
      Standards of ethics require greater honesty, greater
      candor, and greater disclosure, even though it might
      not be in the interest of the client or his estate.

              The handling of a lawsuit and its progress is not
      a game. There is an absolute duty of candor and
      fairness on the part of counsel to both the Court and
      opposing counsel. At the same time, counsel has a
      duty to zealously represent his client’s interests. That
      zealous representation of interest, however, does not
      justify a withholding of essential information. * * *

      * * * [T]he profession should embrace an affirmative
      ethical    standard    for    attorneys’   professional
      relationships with courts, other lawyers and the public:
      The lawyer must act honestly and in good faith.
      Another lawyer * * * * who deals with a lawyer should


                               16
                     not need to exercise the same degree of caution that he
                     would if trading for reputedly antique copper jugs in
                     an oriental bazaar. It is inherent in the concept of an
                     ethic, as a principle of good conduct, that it is morally
                     binding on the conscience of the professional, and not
                     merely a rule of the game adopted because other
                     players observe (or fail to adopt) the same rule. Good
                     conduct exacts more than mere convenience. * * * *

                     * * * * Candor is not inconsistent with striking a deal
                     on terms favorable to the client, for it is known to all
                     that, at least within limits, that is the purpose to be
                     served. * * * * The distinction between honesty and
                     good faith need not be finely drawn here; all lawyers
                     know that good faith requires conduct beyond simple
                     honesty.”

              Kath, 684 P.2d at 100-02 (quoting J. Rubin, A Causerie on
              Lawyer’s Ethics in Negotiations, 35 La.L.Rev. 577, 589-90
              (1975)). I do not believe the State’s actions in this case
              demonstrate the high standard of candor, honesty, and good
              faith required by our rules of civil procedure, rules of
              professional conduct, and precedent.

Lavatai, ¶¶ 14-20, 121 P.3d at 125-27.

[¶40] A similar controversy led to the 2011 decision in Brown v. City of Casper.
Decades earlier, in Board of Trustees of the University of Wyoming v. Bell, the claimant
obtained a default judgment against the University and an employee thereof. 662 P.2d
410 (Wyo. 1983), overruled by Brown, 2011 WY 35, 248 P.3d 1136. Her complaint did
not allege the filing of a governmental claim. The Court found, examining the issue sua
sponte, that “in the absence of an allegation of the filing of such a claim the district court
did not have jurisdiction over the subject matter of the action in accordance with the
decisions which this court has promulgated.” Bell, 662 P.2d. at 414. This decision was
reinforced by Beaulieu II.

[¶41] Some district courts held that a complaint not alleging compliance with the statute
could not be salvaged by an amendment which would relate back to the date of filing, and
that they therefore lacked subject matter jurisdiction. Brown, ¶ 7, 248 P.3d at 1139. This
led the Court to reexamine subject matter jurisdiction under the WGCA in Brown.

[¶42] The Court explored decisions preceding the WGCA, which it interpreted to hold
that “a district court’s jurisdiction does not depend upon the allegations in the pleading;


                                               17
rather it depends upon whether the court’s authority extends over the general class to
which the case belongs.” Id., ¶ 12, 248 P.3d at 1140 (citing State v. Kusel, 29 Wyo. 287,
297, 213 P. 367, 369 (1923); see also State ex rel Yohe v. District Court of Eighth
Judicial District, 33 Wyo. 281, 286, 238 P. 545, 547 (Wyo. 1925); Houtz, 11 Wyo. at
168, 70 P. at 842. It pointed out that the Wyoming Constitution provides district courts
with broad jurisdiction, citing Article 5, §§1 and 10, and that the WGCA, § 1-39-117,
grants them “original and exclusive jurisdiction for any claim under this act . . . .”
Brown, ¶¶ 11-12, 18, 248 P.3d at 1140-41. Specifically, Brown determined:

              [T]he district court obtained subject matter jurisdiction of this
              action … when Mr. Brown filed his complaint alleging that
              he had complied with the requirements of the WGCA by
              presenting a notice of claim pursuant to § 1-39-113 to the
              City. Jurisdiction having been invoked by the filing of a
              complaint alleging a cause of action against a governmental
              entity, and thus a case within the general class over which the
              court’s authority extends, the district court had the power to
              hear and decide the case and enter judgment.

Id., ¶ 45, 248 P.3d at 1147 (footnote omitted).

[¶43] This Court ultimately concluded that Bell and its progeny were wrongly decided to
the extent that they found the filing of a complaint alleging compliance with WGCA
jurisdictional, overruled those cases, and reversed the district court, allowing the
appellant to amend his complaint to allege compliance. Brown, ¶ 44, 248 P.3d at 1146-
47. Brown is important for what it says about the nature of the claim requirement and the
tension between pre- and post-Bell cases:

              In governmental claims cases prior to Bell, this Court had
              held that presentation of a notice of claim was a condition
              precedent to suing a governmental entity. The Court had
              not said presentation of a notice of claim was necessary to
              invoke district court jurisdiction nor had it said a complaint
              must allege presentation of a claim. In fact, the Court had
              consistently exercised jurisdiction in the face of
              complaints that did not allege compliance and in cases
              where it was alleged the notice of claim was inadequate,
              and dismissed complaints only when it determined a
              proper notice of claim in fact had not been presented.
              Neither Bell nor any of its progeny overruled those pre-Bell
              cases. The dichotomy between these two lines of cases must
              be resolved.



                                              18
Id., ¶ 42, 248 P.3d at 1146 (emphasis added).

[¶44] We now reexamine those cases finding that a failure to comply with constitutional
and statutory claim requirements deprives district courts of jurisdiction to dispose of them
on the merits. We note that the Court held in Brown that “the new provision [§1-39-
113(e)] does not address the district courts [sic] jurisdiction for claims under the WGCA.
. . .” Brown, ¶ 46 n.4, 248 P.3d at 1147 n.4.

[¶45] If the statements in Brown are taken to their logical conclusion, it is clear that
Beaulieu II, Schell, Wooster and their progeny were incorrectly decided to the extent they
held that the claim requirements set out in § 1-39-113 of the WGCA and Article 16, § 7
of the Wyoming Constitution are jurisdictional. In this case, although we are not
sympathetic with Appellant’s failure to simply execute the claim as required by the
statute and constitution, that noncompliance does not rise to the level of a jurisdictional
defect. Accordingly, we find our holding in Martinez to be correct; that is, a defect in a
claim is treated as “nothing more than a defect or an irregularity that is not jurisdictional”
and find that the failure to execute the claim as required does not deprive the district court
of subject matter jurisdiction. Martinez, 791 P.2d at 958 (citing In re Bear River
Irrigation District, 51 Wyo. 343, 65 P.2d 686 (1937)); see also Stuart v. Univ. of
Mississippi Med. Ctr., 21 So. 3d 544, 550 (Miss. 2009) (“The notice requirements in the
[Tort Claims Act] are not jurisdictional, and we now hold them to be nonjurisdictional
and, therefore, waivable.”); Weeder v. Cent. Cmty. Coll., 691 N.W.2d 508, 513 (Neb.
2005) (“This court has held that the filing of a tort claim, rather than being jurisdictional
in nature, is a condition precedent to instituting a suit against a political subdivision.”);
Keller v. Tavarone, 628 N.W.2d 222, 230 (Neb. 2001) (“While not a jurisdictional
prerequisite, the filing or presentment of a claim to the appropriate political subdivision is
a condition precedent to commencement of a suit under the ... Act.”).

[¶46] As the Court observed in Brown, § 1-39-117 of the WGCA, Article 5, §§1 and 10
of the Wyoming Constitution, and accepted principles relating to jurisdiction, a district
court’s “subject matter jurisdiction is invoked with the filing of a complaint stating a case
belonging to a general class over which the authority of the court extends.” Brown, ¶ 44,
248 P.3d at 1146. Thus, district courts have subject matter jurisdiction to hear and decide
actions brought against governmental entities, whether or not the claim is defective.
Presentation of a claim is a condition precedent to suing a governmental entity, but it is
not necessary to invoke district court jurisdiction.

[¶47] Our analysis is also bolstered by the language of the WGCA itself. The Wyoming
Legislature had the New Mexico Tort Claims Act available to it when it adopted the
WGCA, and many provisions of the Wyoming act are similar to those contained in the
New Mexico act. DiFelici v. City of Lander, 2013 WY 141, ¶ 19, 312 P.3d 816, 822
(Wyo. 2013). The New Mexico act specifically provides that filing a governmental claim
is jurisdictional (although it also expressly provides that actual notice of a claim may


                                              19
confer jurisdiction).10 We presume that the legislature has acted in a thoughtful and
rational manner with full knowledge of the law when it enacts a statute. Id., ¶ 31, 312
P.3d at 824. It chose to omit language characterizing the filing of a claim as
jurisdictional, even when the act was amended to specify a specific claim form in 2010.11

[¶48] In a similar vein, federal courts, which have limited jurisdiction, have held that a
statutory requirement is jurisdictional only where there is “‘clear’ indication that
Congress wanted the requirement to be ‘jurisdictional.’” Henderson ex rel. Henderson v.
Shinseki, 131 S. Ct. 1197, 1203, 179 L. Ed. 2d 159 (2011); U.S.E.E.O.C v. Farmers
Insurance Co., --F.Supp.2d--, 2014 WL 2465891, *5 (D. E.D. Cal. 2014). Contrary to
our previous rulings, we are unable to find any such clear intention in the historical
background or in the language employed in the WGCA. We must therefore conclude that
the legislature did not intend to make a technically perfect claim a prerequisite to subject
matter jurisdiction, but rather a condition precedent to filing a lawsuit against a
governmental entity.

Waiver

[¶49] By ruling that failure to file a claim strictly complying with the WGCA does not
deprive the district court of subject matter jurisdiction, we do not suggest that failure to
do so would not require dismissal. The important distinction is that the absence of
subject matter jurisdiction can be raised at any time, even on appeal, while failure to
satisfy a condition precedent must be promptly raised as an affirmative defense or
waived. See N. Laramie Range Found., ¶ 22, 290 P.3d at 1073. When Appellees
answered the complaint, they raised as an affirmative defense that “[t]hese defendants
reserve the right to challenge the plaintiff’s compliance with the governmental claims
act.”


10
     N.M. Stat. Ann. § 41-4-16(B) provides as follows:

                  No suit or action for which immunity has been waived under the Tort
                  Claims Act shall be maintained and no court shall have jurisdiction to
                  consider any suit or action against the state or any local public body
                  unless notice has been given as required by this section, or unless the
                  governmental entity had actual notice of the occurrence. The time for
                  giving notice does not include the time, not exceeding ninety days,
                  during which the injured person is incapacitated from giving the notice
                  by reason of injury.

N.M. Stat. Ann. § 41-4-16 (West) (emphasis added).
11
  Although the legislature chose to codify other WGCA decisions, including the requirement that a claim
comply with Article 16, § 7, it did not conform the statute to our decisions regarding subject matter
jurisdiction.


                                                         20
[¶50] Appellant’s counsel also contended at oral argument that Appellees improperly
objected to and did not answer interrogatories requesting that they identify any
deficiencies in the claim while Ms. Harmon could still have corrected them. However,
none of that discovery is in the record. Thus, while Appellees’ efforts to avoid
identifying the deficiencies in the claim and to run the clock out on Ms. Harmon may
resemble those employed in Lavatai, we are only able to consider the adequacy of the
affirmative defense, which is a matter of record.

[¶51] Because the presentation of a notice of claim is a condition precedent to suing a
governmental entity and is not jurisdictional, an assertion that a plaintiff did not comply
with the WGCA and Wyoming Constitution is an affirmative defense subject to waiver.
See Stuart, 21 So. 3d. at 550; see also Ponce v. Parker Fire Dist., 322 P.3d 197, 200
(Ariz. Ct. App. 2014). Wyoming Rule of Civil Procedure 9(c) controls:

                Conditions precedent. – In pleading the performance or
                occurrence of conditions precedent, it is sufficient to aver
                generally that all conditions precedent have been performed
                or have occurred. A denial of performance or occurrence
                shall be made specifically and with particularity.

W.R.C.P. 9(c) (emphasis added); see Brown, ¶ 54, 248 P.3d at 1149 (Golden J., concurring)
 (“If the defendant governmental entity believes that the plaintiff has failed to perform the
condition precedent . . . then W.R.C.P. 9(c) requires that defendant to make the denial of
performance of that condition precedent ‘specifically and with particularity.’ Presented with
that denial, the district court is then able to make any necessary findings of fact on that
issue.”).

[¶52] Appellees’ affirmative defense plainly does not satisfy this requirement. Because
it does not comply with Rule (9)(c), Appellees waived their objection to Ms. Harmon’s
noncompliance with § 1-39-113 of the WGCA and Article 16, § 7 of the Wyoming
Constitution.12

                                           CONCLUSION

[¶53] The requirement of the WGCA that governmental claims be signed under oath was
not satisfied in this case. We conclude, however, that because the claim requirements of

12
  Leave to amend pleadings is to be “freely given when justice so requires.” W.R.C.P. 15(a). Decisions
as to whether to permit amendment are entrusted to the discretion of the trial court, and they will not be
reversed absent an abuse of that discretion. Estate of Marusich v. State ex rel. Dept. of Health, Office of
Healthcare Financing/Equalitycare, 2013 WY 150, ¶ 33, 313 P.3d 1272, 1282 (Wyo. 2013). It is
difficult to imagine a circumstance in which it would be appropriate to allow a defendant to amend an
answer or otherwise raise a defense of failing to properly execute a governmental claim when time
remained for the filing of a proper claim and the defendant simply waited for it to run out.


                                                     21
the WGCA and Wyoming Constitution are substantive but not jurisdictional, a defense
based upon deficiencies in a claim can be waived. We find that Appellees failed to
properly plead an affirmative defense that the claim was defective and therefore waived
that defense.

[¶54] While Appellant may see her day in court even though the claim is defective, we
take this opportunity to again highlight that Wyo. Stat. Ann. § 1-39-113(e) contains a
simple form which satisfies the signature and certification requirements of the WGCA
and Wyoming Constitution. Although the statute provides that the “claim shall be signed
by the claimant under oath in substantially the following format,” id., the better practice
would be to use the wording the legislature supplied to ensure the claim is signed under
oath. See supra, ¶ 20. In other words, the prudent course of action will be to complete
and execute the claim as the legislature directed.

[¶55] We reverse and remand for further proceedings consistent with this opinion.




                                             22
