Municipalities — notice of claim — class actions

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Wisconsin Court of Appeals

Civil

Municipalities — notice of claim — class actions

Where a notice of claim on behalf of a class identified the claimants, their addresses, and their claim amounts, and was signed by an attorney asserting that he represented all of the claimants, it was error for the trial court to dismiss the case.

“Nothing in WIS. STAT. § 893.80(b) makes any reference to the requirement that the claimants’ notice show the claim is being made ‘by their authority.’ We presume this is why Markweise considered ‘authority’ to be a subsec. (a) requirement, not a subsec. (b) requirement. See Markweise, 205 Wis. 2d at 219 (‘reference to persons as of yet unidentified does not satisfy the “written notice of the circumstances of the claim” requirement of § 893.80(1)(a)’). Considering ‘authority’ to bring multiple-party claims as part of the § 893.80(1d)(a) requirements makes sense, since that is the subsec. that requires a notice ‘signed by the party, agent or attorney.’ Because failure to fulfill the subsec. (a) requirements ‘shall not bar’ action if there was actual notice and lack of prejudice, Markweise therefore went on to consider whether the government could be deemed to have ‘actual notice’ of the unnamed claimants’ claims. See Markweise, 205 Wis. 2d at 219-22. In light of the fact that the ‘authority’ requirement arises under § 893.80(1d)(a), the District’s concession on appeal that compliance with § 893.80(1d)(a) is not properly before us in this appeal is dispositive.”

Reversed.

Recommended for publication in the official reports.

2013AP2839 Townsend v. Hopfensperger

Dist. II, Winnebago County, Seifert, J., Brown, J.

Attorney: For Appellant: Hertel, Charles J., Oshkosh; Mynsberge, Heath G., Oshkosh; For Respondent: Stadler, Ronald S., Milwaukee; Graf, Aaron J., Milwaukee