825 N.W.2d 273
Wis.2013Background
- Petitioners are the Estate of Danny L. Hopgood and individuals injured in an automobile accident against Boyd, a State of Wisconsin agent.
- Petitioners sought review of a court of appeals order affirming a circuit court summary judgment for Boyd.
- Boyd moved to dismiss, arguing petitioners’ notices of claim were not properly sworn to as required by Wis. Stat. § 893.82(5).
- Notices were served on the attorney general within 120 days and alleged Boyd acted as an agent of the State.
- Affidavits from two notaries described the oaths administered to petitioners, but the notices themselves did not include a notary attesting to the oath.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What must a notice of claim show to be properly sworn to under § 893.82(5) | Kellner requires an oath and a showing that the oath occurred | Newkirk expands Kellner to require authorized-person statement | Kellner requires two elements: oath and showing oath occurred; Newkirk misapplied Kellner |
| Do the notices in this case meet Kellner’s requirements | Text of notices proves oaths occurred and were administered | Notaries’ face statements missing; affidavits insufficient | Notices satisfy Kellner’s two requirements; warrants reversal and remand; jurat urged for future certainty |
| Does Newkirk control authority over Kellner's scope here | Newkirk should govern post-Kellner interpretation | Kellner controls; Newkirk expands improperly | Newkirk language withdrawn; Kellner governs the requirements |
| What is the court’s ruling on the procedural posture | Summary judgment appropriate if notices fail Kellner | Notices met Kellner; summary judgment improper | Court of appeals reversed; circuit court’s summary judgment reversed; remand for further proceedings |
Key Cases Cited
- Kellner v. Mendota Mental Health Inst., 197 Wis. 2d 183 (Wis. 1995) (establishes two Kellner requirements: sworn oath and showing oath occurred)
- Newkirk v. Dep’t of Transp., 228 Wis. 2d 830 (Ct. App. 1999) (interpreted Kellner to require an authorized-person oath acknowledgment and perjury deterrence)
- Ibrahim v. Samore, 118 Wis. 2d 720 (Wis. 1984) (jurisdictional defect for noncompliant notice under § 893.82(2m))
- Green Spring Farms v. Kersten, 136 Wis. 2d 304 (Wis. 1987) (statutory interpretation framework for summary judgment)