In Maple Grove Country Club, Inc. v. Maple Grove Estates Sanitary District (2019 WI 43), the Wisconsin Supreme Court held that failure to comply with the notice of claim statute is an affirmative defense. If a party fails to set forth the affirmative defense in a responsive pleading, the defense is waived.

Maple Grove Country Club owned a sewer system, which it leased to the Sanitary District. When the Country Club and Sanitary District failed to come to an agreement on a new lease, the Country Club served the Sanitary District with a notice of claim under Wis. Stat. § 893.80(1d)(a), stating that the Sanitary District was illegally occupying its property in violation of statutory condemnation proceedings. Three years later, the Country Club filed the instant action in circuit court. In the Sanitary District’s response to the Country Club’s complaint, it did not affirmatively plead that the Country Club had failed to comply with the notice of claim statute. Later the Sanitary District attempted to raise the affirmative defense by motion. The Country Club then argued that the Sanitary District had waived the affirmative defense of noncompliance with the notice of claim statute by not including the defense it its initial response.

The issues before the court were 1) whether noncompliance with the notice of claim statute is an affirmative defense, and 2) whether failing to plead the affirmative defense in response to a complaint waives the defense.

First, the court determined that case law provides that failure to comply with the notice of claim statute is an affirmative defense. Second, the court determined that such an affirmative defense must be raised in a responsive pleading, not by motion. Wis. Stat. § 802.02(3) states that affirmative defenses “shall” be set forth in responsive pleadings. Furthermore, noncompliance with notice of claim is not included in the list of affirmative defenses that may be brought by motion under Wis. Stat. § 802.06(2). The court overruled previous case law Lentz v. Young (1995) that had ruled defendants may raise affirmative defenses by motion.

Accordingly, the Sanitary District’s affirmative defense that the Country Club did not comply with the notice of claim statute was waived.