                                                             2019 WI 46

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2016AP493
COMPLETE TITLE:        Ann Cattau, Thomas M. Beck, Linda Beckwith,
                       Ardyth Bergstrom, Vicki Christman, Gail W.
                       Cismoski,Kathleen A. Curtis, Janice DeMenter,
                       John Dobbins, Elsie Evenson, Kris Grasley, Gary
                       Haffeman, Kristine Haffeman, Kathy J. Hager,
                       Gail Harrmann, Joann Harrell, Mary Louise
                       Hildebrandt, Lexann Hitchcock, Jo Anne Holden,
                       Karla M. Huston, Susan R. Johnson, Mary K.
                       Jones, Dorothi A. Karisny, Chuck Knoeck,
                       Lawrence H. Krebs, Diane D. Krueger, Helen L.
                       Kurka, Judith J. Kurka Nagel, James Lantz, Jane
                       E. Lantz, Thomas Marzahl, Mary Joy Mayer,
                       Marjorie R. Murphy, Bruce C. Nufer, Anna P.
                       Olson, Sharon O'Reilly, Patricia Ormston, Mark
                       Peerenboom, Sue Peterson, James S.
                       Piepenbrink, Anna Mae Prem, Jane Reimer, Mary J.
                       Resch, Cynthia A. Rieck, Dianne Roth, Lucy
                       Rumpf, Susan M. Schug, David K. Sebora, Suann M.
                       Senso, Karla Sheehan, Sandra L. Smith, Robin L.
                       Snell, Mary C. Tieman, Teresa D. Walotka,
                       Patricia M. Waskawic, Mindy Weichmann, Susan
                       Westphal, Vicki Wippich, Christine Wollerman,
                       James A. Zipple and Levern J. Zwirchitz,
                                 Plaintiffs-Appellants-Petitioners,
                       James Shipman,
                                 Plaintiff,
                            v.
                       National Insurance Services of Wisconsin, Inc.
                       and MidAmerica Administrative & Retirement
                       Solutions, Inc.,
                                 Defendants-Respondents,
                       Neenah Joint School District and Community
                       Insurance Corporation,
                                 Intervenors-Respondents.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 383 Wis. 2d 600,918 N.W.2d 127
                                     (2018 – unpublished)

OPINION FILED:         April 30, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         March 18, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Winnebago
  JUDGE:                 John A. Jorgensen

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:    ABRAHAMSON, J. did not participate.

ATTORNEYS:


       For    the       plaintiffs-appellants-petitioners,           there   was    a
brief      filed    by    Charles   J.    Hertel,   Heath     G.   Mynsberge,      and
Dempsey Law Firm, LLP, Oshkosh. There was an oral argument by
Heath G. Mynsberge.


       For the defendants-respondents, there was a brief filed by
Joseph L. Olson, Mark A. Lotito, and Michael Best & Friedrich
LLP, Milwaukee. There was an oral argument by Joseph L. Olson.


        For      the       intervenor-respondent         Community        Insurance
Corporation,        there    was    a    brief   filed   by   Lori   M.   Lubinsky,
Michael D. Hahn, and Axley Brynelson, LLP, Madison.


        For the intervenor-respondent Neenah Joint School District,
there was a brief filed by Ronald Stadler, Jonnathan Sacks, and
Mallery & Zimmerman, s.c., Milwaukee.




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                                                                 2019 WI 46
                                                         NOTICE
                                           This opinion is subject to further
                                           editing and modification.   The final
                                           version will appear in the bound
                                           volume of the official reports.
No.    2016AP493
(L.C. No.   2013CV1149)

STATE OF WISCONSIN                     :            IN SUPREME COURT

Ann Cattau, Thomas M. Beck, Linda Beckwith,
Ardyth Bergstrom, Vicki Christman, Gail W.
Cismoski, Kathleen A. Curtis, Janice DeMenter,
John Dobbins, Elsie Evenson, Kris Grasley, Gary
Haffeman, Kristine Haffeman, Kathy J. Hager,
Gail Harrmann, Joann Harrell, Mary Louise
Hildebrandt, Lexann Hitchcock, Jo Anne Holden,
Karla M. Huston, Susan R. Johnson, Mary K.
Jones, Dorothi A. Karisny, Chuck Knoeck,
Lawrence H. Krebs, Diane D. Krueger, Helen L.
Kurka, Judith J. Kurka Nagel, James Lantz, Jane
E. Lantz, Thomas Marzahl, Mary Joy Mayer,
Marjorie R. Murphy, Bruce C. Nufer, Anna P.
Olson, Sharon O'Reilly, Patricia Ormston, Mark
Peerenboom, Sue Peterson, James S. Piepenbrink,
Anna Mae Prem, Jane Reimer, Mary J. Resch,                    FILED
Cynthia A. Rieck, Dianne Roth, Lucy Rumpf,
Susan M. Schug, David K. Sebora, Suann M.                APR 30, 2019
Senso, Karla Sheehan, Sandra L. Smith, Robin L.
Snell, Mary C. Tieman, Teresa D. Walotka,                   Sheila T. Reiff
Patricia M. Waskawic, Mindy Weichmann, Susan             Clerk of Supreme Court
Westphal, Vicki Wippich, Christine Wollerman,
James A. Zipple and Levern J. Zwirchitz,

            Plaintiffs-Appellants-Petitioners,

James Shipman,

            Plaintiff,

      v.

National Insurance Services of Wisconsin, Inc.
and MidAmerica Administrative & Retirement
Solutions, Inc.,
             Defendants-Respondents,

Neenah Joint School District and Community
Insurance

Corporation,

             Intervenors-Respondents.




     REVIEW of a decision of the Court of Appeals.                     Affirmed.



     ¶1      PER CURIAM.     We review an unpublished decision of the
court of appeals1 affirming an order of the circuit court that
dismissed plaintiffs' claims.2            Plaintiffs, a group of 61 retired
Neenah       teachers      and      administrators,             sued     MidAmerica
Administrative     &    Retirement    Solutions,         Inc.    (MidAmerica)      and
National      Insurance     Services          of     Wisconsin,        Inc.   (NIS).
MidAmerica and NIS moved to dismiss for failure to state a claim
upon which relief may be granted.                  The plaintiffs attempted to
plead    breach   of    fiduciary    duty,         negligent    misrepresentation,
strict    responsibility     misrepresentation,           and    negligence,       all
arising from MidAmerica and NIS's alleged mismanagement of their

retirement benefits.




     1 Cattau v. Nat'l Ins. Servs. of Wis., Inc., No. 2016AP493,
unpublished slip op. (Wis. Ct. App. June 13, 2018).
     2 The    Honorable     John     A.    Jorgenson      of    Winnebago     County
presided.




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      ¶2      The     court       of     appeals       affirmed       the    circuit    court's
dismissal of plaintiffs' claims against MidAmerica and NIS.                                    The
court of appeals held that our decision in Data Key Partners v.

Permira       Advisers       LLC,        2014     WI        86,     356     Wis. 2d 665,      849
N.W.2d 693,         created        a    new,    heightened          pleading     standard      in
Wisconsin,      and    that        under       this    new       standard,    plaintiffs       had
failed to state a claim upon which relief may be granted.
      ¶3      We granted review and unanimously conclude that our
decision      in     Data       Key      did    not        change    Wisconsin's       pleading
standard as previously articulated in Strid v. Converse, 111
Wis. 2d 418,         422-23,       331    N.W.2d 350          (1983).        Accordingly,       we
reverse the decision of the court of appeals in this regard.

However,      notwithstanding              that       unanimous       conclusion,       we     are
equally divided as to whether the plaintiffs have stated a claim
upon which relief may be granted against MidAmerica or NIS based
on the Data Key/Strid standard.                        Therefore, the decision of the
court    of    appeals       is        affirmed       by    an    equally     divided       court.
Wingra Redi-Mix, Inc. v. Burial Sites Pres. Bd., 2018 WI 54, ¶1,
381 Wis. 2d 601, 912 N.W. 392.
      ¶4      To explain further, the pleading standard we set out
in Data Key is consistent with the pleading standard in Strid,
and     is    grounded        in       Wis.     Stat.       § 802.02(1)(a)'s          (2017-18)
requirement         that    a      complaint          contain       "[a]    short     and    plain
statement       of     the        claim,        identifying          the     transaction        or
occurrence or series of transactions or occurrences out of which
the claim arises and showing that the pleader is entitled to
relief."       When determining whether a complaint states a claim

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upon which relief may be granted, courts must "accept as true
all    facts    well-pleaded       in    the     complaint           and   the       reasonable
inferences therefrom."            Data Key, 356 Wis. 2d 665, ¶19 (citation

omitted).        "If the facts reveal an apparent right to recover
under    any    legal    theory,     they       are       sufficient       as    a    cause    of
action."       Strid, 111 Wis. 2d at 423 (citation omitted).
       ¶5      While    courts    must     accept         all    well-pleaded          facts   as
true, courts cannot add facts to a complaint, and do not accept
as    true   legal conclusions           that are             stated in     the complaint.
Data Key, 356 Wis. 2d 665, ¶19.                     For this reason, "a formulaic
recitation of the elements of a cause of action" is not enough
to state a claim upon which relief may be granted.                              Id., ¶25.

       ¶6      "[T]he        sufficiency       of         a     complaint        depends       on
substantive law that underlies the claim made because it is the
substantive law that drives what facts must be pled."                                 Id., ¶31.
If proof of the well-pleaded facts in a complaint would satisfy
each element of a cause of action, then the complaint has stated
a claim upon which relief may be granted.                            Id., ¶21; see also
Strid, 111 Wis. 2d at 422-23 ("It is the sufficiency of the
facts alleged that control the determination of whether a claim
for relief is properly plead.").
       ¶7      The defendants argue that by setting out the pleading
standard employed by the United States Supreme Court in Bell
Atlantic     Corp.      v.    Twombly,     550      U.S.       544   (2007),      we    changed
Wisconsin's      pleading       standard       to     a       heightened    "plausibility"
standard.       However, as we explained in Data Key, we interpret
the Supreme Court's decision in Twombly as being consistent with

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                                                                            No.   2016AP493



Strid.        Data Key, 356 Wis. 2d 665, ¶30.                    Therefore, Data Key

controls Wisconsin's pleading standard and it reaffirmed Strid.
Id.
      ¶8       Accordingly, because we unanimously conclude that our
decision       in   Data   Key    did   not          change     Wisconsin's       pleading
standard      as    previously    articulated          in     Strid,   we   reverse     the
decision of the court of appeals' interpretation of Data Key.
However,       notwithstanding       our        unanimous       conclusion,       we    are
equally divided as to whether the plaintiffs have stated a claim
upon which relief may be granted against MidAmerica or NIS based
on the Data Key/Strid standard.                  Therefore, the decision of the
court    of    appeals     is    affirmed       by     an   equally    divided      court.

Wingra Redi-Mix, 381 Wis. 2d 601, ¶1.
      By   the      Court.—The    decision        of    the    court   of     appeals   is
affirmed.
      ¶9       SHIRLEY S. ABRAHAMSON, J., withdrew from participation
before oral argument.




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