853 N.W.2d 607
Wis. Ct. App.2014Background
- Relocation expenses sought after property taken by Wis. DOT; Aesthetic sued for declaratory relief seeking a two-move relocation plan.
- The circuit court found the Department initially approved a two-move plan and issued a writ of assistance for eviction.
- Wis. Stat. § 32.20 requires claims be filed after damages materialize and within 2 years after possession; failure to decide within 90 days allows suit in court.
- Aesthetic accepted a Jurisdictional Offer in August–September 2012, sold the property October 2012, and vacated by February 2013.
- The circuit court credited Aesthetic’s credibility and held the Department had approved a two-move plan, bypassing § 32.20 procedures; the court rejected sovereign immunity as a defense.
- The court of appeals ultimately held the Department’s sovereign immunity barred the declaratory-judgment action and remanded to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity bars the declaratory action | Aesthetic argues sovereign immunity was forfeited by the Department’s appearance seeking a writ | Department asserts sovereign immunity; no waiver or forfeiture occurred | Yes; sovereign immunity bars the declaratory action |
| Whether the Department forfeited/waived sovereign-immunity defense | Department forfeited by seeking relief via writ of assistance | Department consistently asserted immunity; no waiver | No forfeiture; defense preserved; action must be dismissed |
| Whether the action violated Wis. Stat. § 32.20 timing | Declaration circumvented § 32.20’s post-damages filing requirement | Regulation could permit two-move planning as part of § 32.20 process | Governing § 32.20 controls; declaratory judgment improper |
Key Cases Cited
- PRN Associates LLC v. State of Wisconsin Department of Administration, 317 Wis.2d 656 (Wis. 2009) (declaratory judgments cannot fix state monetary responsibility when consent not granted)
- Lister v. Board of Regents of the University of Wisconsin System, 240 N.W.2d 610 (Wis. 1976) (declaratory relief against state actor governed by statutory consent limits)
- Miesen v. State of Wisconsin Department of Transportation, 594 N.W.2d 821 (Ct. App. 1999) (implied consent to sue under §32.05 differs from §32.20 scheme here)
- Lees v. Department of Industry, Labor & Human Relations, 182 N.W.2d 245 (Wis. 1971) (appearance can waive lack of personal jurisdiction in some contexts)
- Artis-Wergin v. Artis-Wergin, 444 N.W.2d 750 (Wis. Ct. App. 1989) (illustrates appearance effects on jurisdictional defenses)
- Milwaukee Transport Services, Inc. v. Department of Workforce Development, 624 N.W.2d 895 (Wis. Ct. App. 2001) (statutes govern over conflicting regulations; harmonize)