Kellner v. Christian

Decision Date27 October 1994
Docket NumberNo. 93-1657,93-1657
Citation188 Wis.2d 525,525 N.W.2d 286
PartiesJason E. KELLNER, Gary Kellner, and Marilyn Mae Carraway, Plaintiffs-Appellants, d v. Richard CHRISTIAN, Beth Cox, and Karen Stoll, Defendants-Respondents.
CourtWisconsin Court of Appeals

For the defendant-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen., and John J. Glinski, Asst. Atty. Gen.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

Jason E. Kellner and his parents, Gary Kellner and Marilyn Mae Carraway, appeal from a judgment granting the State's motion for judgment on the pleadings because their notices of claim were defective. We conclude that the notices filed by Jason and his parents, Gary and Marilyn, were insufficient because they were not sworn to by the claimants as required by § 893.82(5), STATS. 1 We therefore affirm.


On July 5, 1991, Jason, then a minor, was a resident in treatment in the child adolescent section of Mendota Mental Health Institute (MMHI). He was injured while playing basketball in the patient courtyard under the supervision of Richard Christian, a Residential Care Technician. At the time of the accident, Beth Cox was Director of MMHI and Karen Stoll was Management Services Director.

As a result of Jason's injuries, Jason and his parents decided to sue Christian, Cox and Stoll. Since the defendants were employees of the State of Wisconsin, § 893.82(5), STATS., required that Jason and his parents serve a notice of claim of injury on the attorney general. In October 1991, Jason and Gary met with their attorney who asked them to read the notices he had prepared, and inquired as to whether they understood them and whether the contents contained therein were true and accurate to the best of their knowledge.

Jason and Gary executed their notices, and their attorney, as guardian ad litem for Jason, also executed Jason's notice. These notices were signed before a notary public who verified that the signers were known to her to be the persons who signed the notices and acknowledged the same. 2 Marilyn, however, was not present at this meeting and her notice was witnessed by an individual not authorized to administer oaths. The notices were served on the attorney general. The State of Wisconsin denied their claim.

Jason and his parents filed suit in March 1992, attaching copies of their notices to the complaint. The State filed an answer and later moved for judgment on the pleadings on the grounds that the trial court lacked jurisdiction to hear the case because Jason and his parents had not complied with the requirements of § 893.82(5), STATS. Jason and his parents responded to the State's motion by filing affidavits describing the swearing ceremonies in which they participated. The State did not dispute the procedure employed by Jason, Gary and Marilyn in filing affidavits, but instead took the position that the affidavits were irrelevant. The trial court granted the State's motion for judgment on the pleadings because the notices were not properly sworn to under § 893.82(5). Jason, Gary and Marilyn appeal.


We review the meaning of a statute de novo. State ex rel. Frederick v. McCaughtry, 173 Wis.2d 222, 225, 496 N.W.2d 177, 179 (Ct.App.1992). If the meaning of the statute is clear, we go no further. Pabst Brewing Co. v. DOR, 130 Wis.2d 291, 294-95, 387 N.W.2d 121, 122 (Ct.App.1986). Rules of construction are only used when the meaning of a statute is ambiguous. Id. A statute is ambiguous if it is capable of being understood by reasonably well-informed persons to have two or more different meanings. State Public Defender v. Circuit Court, 184 Wis.2d 860, 867, 517 N.W.2d 144, 146 (1994). If the statute is ambiguous, we may then examine its statutory context, subject matter, scope, history and the object to be accomplished. Pabst Brewing Co., 130 Wis.2d at 295, 387 N.W.2d at 122.


Section 893.82(5), STATS., requires that a notice of claim "shall be sworn to by the claimant...." The plain language of § 893.82(5) is not ambiguous and requires that the claimant make an oath or affirmation as to the truthfulness of the contents contained within the notice. It also requires that the notice of claim show that the oath or affirmation occurred.

Jason and his parents do not argue that the statements contained on the face of their notices, alone, satisfy the statute. We agree. The notary public's statement contained in Jason and Gary's notices only rises to the level of an acknowledgement that Jason and Gary were who they purported to be. Similarly, the witness's signature contained in Marilyn's notice only attests that Marilyn signed the notice. This does not verify the contents of the notice she executed.

Jason and his parents do, however, argue that by orally swearing to the truthfulness of the contents of their respective notices before they were executed, they have satisfactorily complied with the swearing requirement of the statute. Jason and his parents point to the broad language of § 887.03, STATS., which provides that "[a]ny oath or affidavit required or authorized by law may be taken in any of the usual forms, and every person swearing, affirming or declaring in any such form shall be deemed to have been lawfully sworn." They contend that not only do their actions conform with the language of this statute, but that the requirements of § 887.03 control the issue of whether a notice has been sworn to by the claimant. We disagree. Section 887.03 does not determine whether a statement served on the attorney general must show evidence that it has been sworn to, but merely describes the manner in which an oath may be administered. 3

Section 893.82(1), STATS., was enacted to:

(a) Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state. (b) Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding. (c) Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employe or agent.

To ensure that the statute's goals are met, evidence that a claimant has sworn to the contents contained in the notice must be presented to the attorney general with the notice of claim.

First, as both parties have noted, § 893.82(2m), STATS., provides that "[n]o claimant may bring an action against a state officer, employe or agent unless the claimant complies strictly with the requirements of this section." 4 (Emphasis added.) The requirements of the statute are not general guidelines but are rules to which a claimant must adhere with exacting care. Kelly v. Reyes, 168 Wis.2d 743, 746-47, 484 N.W.2d 388, 389 (Ct.App.1992) (finding the statutory requirement that the notice be served by certified mail does not permit service via regular mail). In Kelly, we explained that a tight reading of the statute "helps to maintain a simple, orderly, and uniform way of conducting legal business." Id. at 747, 484 N.W.2d at 389. Thus, to ensure certainty, avoid a case-by-case analysis of whether a claimant has complied with the requirements of the statute and to avoid another level of litigation, evidence that the notice has been sworn to must be contained in the notice of claim. 5

Second, evidence that the claimant has sworn to the truthfulness of the contents of the notice fosters judicial economy. Section 893.82(5), STATS., confirms that the claimant has carefully read the contents of the notice and has verified its facts. The attorney general cannot assume, absent evidence of some affirmation, that the contents of the notice accurately reflect the facts of the case. The attorney general should not be required to investigate and litigate the issue if the claimant fails to include evidence that the notice has been sworn to. Thus, Jason and his parents' contention that they did swear to the contents of their notices before executing them is irrelevant absent the inclusion of such evidence in the notices.

Third, evidence that formalities, such as the execution of a sworn statement, have been complied with deter opportunities for false swearing. A claimant who makes a fraudulent claim subjects himself or herself to the possibility of being charged with false swearing under § 946.32(1)(a), STATS. A higher standard of accountability therefore helps to guarantee the veracity of statements contained within the notices.

Finally, § 893.82, STATS., is not simply an actual notice statute that permits procedural defects. Carlson v. Pepin County, 167 Wis.2d 345, 357, 481 N.W.2d 498, 503 (Ct.App.1992). Rather, strict compliance with § 893.82(5) is a condition precedent to pursuing a claim against the state. Id. at 358, 481 N.W.2d at 503. While the overall intent of the statute is to give the attorney general some general notice of claims against the state, this does not mean that the procedural requirements can be disposed of just because the attorney general receives and responds to a claim. Kelly, 168 Wis.2d at 747-48, 484 N.W.2d at 389. The requirements of § 893.82(5) must be strictly complied with "even though it produces 'harsh consequences.' " J.F. Ahern Co. v. Wisconsin State Bldg. Comm'n, 114 Wis.2d 69, 83, 336 N.W.2d 679, 686 (Ct.App.1983) (quoting Mannino v. Davenport, 99 Wis.2d 602, 615, 299 N.W.2d 823, 829 (1981)).

We conclude that § 893.82(5), STATS., requires that a claimant include evidence that he or she has sworn to the contents of the notice when it is filed with the attorney general. Jason and his parents failed to do this. Accordingly, we affirm.

Judgment affirmed.

SUNDBY, Judge, (concurring in part; dissenting in part).

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9 cases
  • Kellner v. Christian
    • United States
    • Wisconsin Supreme Court
    • November 21, 1995
    ...§ 887.03 is not applicable. Section 887.03 describes the manner in which an oath may be administered. Kellner v. Christian, 188 Wis.2d 525, 530, 525 N.W.2d 286, 289 (Ct.App.1994). It does not address the question of whether a notice of claim statement must show that it has been sworn Based ......
  • Modica v. Verhulst
    • United States
    • Wisconsin Court of Appeals
    • June 29, 1995
    ...Since the 1991 amendment, strict compliance has been required, as § 893.82(2m) plainly states. See Kellner v. Christian, 188 Wis.2d 525, 531-32, 525 N.W.2d 286, 289 (Ct.App.1994) (strict compliance with § 893.82 is required; requirements of the statute are not general guidelines but are rul......
  • Johnson v. Labor and Industry Review Com'n
    • United States
    • Wisconsin Court of Appeals
    • March 5, 1996
    ...on the basis of age. Only if the statute is ambiguous can we go beyond its plain language to interpret it. Kellner v. Christian, 188 Wis.2d 525, 528, 525 N.W.2d 286, 288 (Ct.App.1994). A statute is ambiguous if it is capable of being understood differently by reasonably well-informed person......
  • Robinson v. Edwards
    • United States
    • U.S. District Court — Western District of Wisconsin
    • June 8, 2021
    ...strict compliance with the notice of claim statute "even though it produces 'harsh consequences.'" Kellner v. Christian, 188 Wis.2d 525, 533, 525 N.W.2d 286, 290 (Ct. App. 1994) (internal citations omitted). Defendants say that plaintiff failed to comply with the notice of claim statute in ......
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