Civil Procedure — notices of claim — affirmation

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Wisconsin Supreme Court

Civil

Civil Procedure — notices of claim — affirmation

Even though notices of claim did not contain a statement by the notaries that they administered the oaths and instead included a statement by the claimants to the same effect, the notices were not defective.

“In sum, we conclude that Kellner sets forth two requirements in order for a notice of claim to be properly ‘sworn to’ under Wis. Stat. § 893.82(5). First, a formal oath or affirmation must be taken by a claimant. Kellner, 197 Wis. 2d at 198. Second, the notice of claim must contain a statement showing that the oath or affirmation occurred. Id. To the extent that Newkirk appears to expand those requirements, it misapplied Kellner and we withdraw that language in Newkirk.”

“We further conclude that the notices in this case meet the two Kellner requirements and are therefore properly ‘sworn to’ under Wis. Stat. § 893.82(5). Nevertheless, in the future, to promote certainty and to avoid unnecessary litigation, we urge claimants to file notices of claims using a jurat in which the notary sets forth that the notice was “sworn to” or affirmed before the notary. Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings.

Reversed and Remanded.

2011AP914 Estate of Hopgood v. Boyd

Bradley, J.

Attorneys: For Appellant: Trecek, Timothy S., Milwaukee; Lanford, Rhonda L., Madison; Perez, Ricardo, Racine; Curtis, Ronald C., Milwaukee; Egelhoff, Michael D., Milwaukee; Rottier, Daniel A., Milwaukee; For Respondent: Glinski, John J., Madison