Fessler's Estate, Matter of

Citation302 N.W.2d 414,100 Wis.2d 437
Decision Date03 March 1981
Docket NumberNo. 79-645,79-645
PartiesIn the Matter of the ESTATE of Earl W. FESSLER, Deceased. WILLIAM B. TANNER COMPANY, INC., Appellant-Petitioner, v. ESTATE of Earl W. FESSLER, Respondent.
CourtUnited States State Supreme Court of Wisconsin

Louis R. Lucas, Memphis, Tenn., argued for appellant-petitioner; Percy L. Julian, Jr., and Julian & Associates, S. C., Madison, and Kathy Gomes and Picard, Caywood, Lucas & Watson, Memphis, Tenn., on brief.

Thomas R. Glowacki, Madison, argued for respondent; Harris, Hill & Glowacki, Madison, on brief.

Bronson C. La Follette, Atty. Gen., and F. Joseph Sensenbrenner, Jr., Asst. Atty. Gen., filed brief in Court of Appeals.

BEILFUSS, Chief Justice.

This is a review of a decision of the court of appeals which affirmed the judgment of the Circuit Court for Dane County, ROBERT R. PEKOWSKY, Circuit Judge.

This matter concerns the denial of a claim filed in probate court against the Estate of Earl W. Fessler, deceased. The claim was filed by the William B. Tanner Company, Inc. The claimant is a Tennessee corporation which engages in the business of providing promotional advertising and other services to various radio and television stations throughout the United States.

The record reflects that the decedent was the owner and operator of radio station WMFM, Madison, Wisconsin. In this capacity he contracted with the William B. Tanner Company, Inc., (Tanner) for a service program known as a "Creative Sales Service." In consideration for this service program, the decedent agreed to pay a monthly sum and agreed to provide a series of "one-minute spots" to be used by Tanner for advertising purposes during the radio station's broadcasting programs. There was no time limitation on the use of these spots and under the contract they remained valid until used. The parties initially contracted for a one-year term in 1968. A second contract was entered into in 1969. This was a two-year contract.

Tanner alleges that $11,287.20 is owed to it under the terms of the contracts. This sum represents both the monthly payments remaining due under the agreements and the value of the unused "one-minute spots" that were to be provided by the decedent to Tanner.

The decedent died on November 27, 1977. A petition for the probate of his will was filed on December 14, 1977. On that same date, pursuant to secs. 859.01 and 859.05 Stats., 1 the probate court entered an order limiting the time for the filing of claims by creditors. According to the order, claims were to be filed by March 28, 1978. Notice of this limitation was ordered to be published in the Wisconsin State Journal once a week for three consecutive weeks. A notice was in fact published in accord with sec. 859.07. 2

On December 26, 1978, almost nine months after the final date for filing claims as ordered by the court, Tanner filed a claim against the estate in the amount of $11,287.20. The personal representative, Mrs. Earl W. Fessler, objected to the allowance of Tanner's demand as an untimely claim barred by the operation of sec. 859.01, Stats.

A hearing was held on the claim on February 28, 1979. Tanner argued that before a creditor's rights may be extinguished by operation of sec. 859.01, Stats., notice which is reasonably calculated to advise the creditor of the pending probate proceeding is required by the due process clause of the fourteenth amendment. It was contended that notice by publication alone under the terms of sec. 859.07 was not constitutionally valid. The personal representative argued that the notice scheme was not unconstitutional and that Tanner's claim was barred by the time limitation under the probate code.

Although Tanner's argument challenged the constitutionality of the notice provisions of sec. 859.07, Stats., no notice was served upon the attorney general to afford the state an opportunity to be heard at the probate proceedings.

The probate court disallowed the claim, and Tanner appealed. While this matter was pending before the court of appeals, the attorney general was notified and was given an opportunity to participate in the appellate proceedings. In response to this invitation the attorney general maintained that the court of appeals had no jurisdiction to hear the appeal in light of Tanner's failure to give the state notice of the lower court proceeding wherein the statutes were originally challenged as unconstitutional. Addressing the merits of Tanner's claim, the attorney general adopted the argument of the personal representative as an ample presentation of the case law and policy considerations in support of the constitutionality of the notice provisions under ch. 859, Stats. The court of appeals dismissed the appeal in light of the lack of the attorney general's participation at the trial court level. The opinion was unpublished. 3 We subsequently granted Tanner's petition for review.

This case presents three issues:

1. Whether the failure to notify the attorney general of the proceedings prior to the time the cause reached the court of appeals requires the dismissal of Tanner's appeal.

2. Whether a creditor is entitled as a matter of due process of law to be notified of an order under sec. 859.05, Stats., limiting the time for the filing of claims.

3. Whether the notice provisions of ch. 859, Stats., unduly "fetter" the flow of interstate commerce so as to be violative of the commerce clause of the federal constitution.

The personal representative asked that we dismiss this review due to Tanner's failure to provide the attorney general with an opportunity to participate in the initial challenge to the constitutionality of the notice provisions of ch. 859, Stats., in the probate court. It is claimed that this result is required by the rule of Kurtz v. City of Waukesha, 91 Wis.2d 103, 280 N.W.2d 757 (1979). However, the Kurtz Case was decided several months after judgment was entered against Tanner, and Tanner argues that the retroactive application of the holding in that case to this proceeding would violate the due process clause of the fourteenth amendment.

Although the arguments of counsel have focused upon the retroactivity of the Kurtz decision, we conclude the even if it is assumed that that decision has retroactive effect, the Kurtz rule does not bar our consideration of the merits of Tanner's claims.

Prior to our decision in Kurtz v. City of Waukesha, supra, this court recognized the importance of allowing the attorney general to participate in proceedings wherein a statute was challenged as invalid. In Kenosha v. Dosemagen, 54 Wis.2d 269, 195 N.W.2d 462 (1972), the court considered the constitutional validity of several statutes. It was noted that participation by the attorney general in such cases was desirable. "It is the attorney general who should be afforded the opportunity to act in a representative capacity in behalf of the legislature and the people of the state to uphold the constitutionality of a statute of statewide application." Id. at 271, 195 N.W.2d 462. The court concluded that it may in the future direct the state to file a brief amicus curiae when the attorney general has not been made a party to the action. Id.

The notice requirement in a nondeclaratory action was reviewed and changed several years after the decision in Kenosha v. Dosemagen, supra. In Kurtz v. City of Waukesha, 91 Wis.2d 103, 280 N.W.2d 757 (1979), this court ruled that it would not consider the constitutionality of the Fair Employment Act, sec. 111.31 et seq. Stats., due to the failure of the parties to notify the attorney general of the constitutional challenge to the statute and to allow him to be heard on the issue. The court wrote:

"We conclude that cogent reasons exist for the application of the service requirement in all cases involving constitutional challenges ... Because we hold that the service requirement is applicable to this case and the record is devoid of evidence of service on the attorney general, it follows that the trial court could not properly consider the constitutional issue raised by the demurrer. We therefore cannot review that issue." 91 Wis.2d at 117, 280 N.W.2d 757.

Under the Kurtz rule a party will be foreclosed from challenging the validity of a statute unless the attorney general is given an opportunity to appear before the court and defend the law as constitutionally proper.

There is no dispute in this case that notice to the attorney general was not given and that the Kurtz rule was not complied with. The question which must be resolved is whether notice which was first given in this case while the cause was pending before the court of appeals cured the defect created by the failure to give notice to the attorney general at the probate court level.

Although the Kurtz rule is closely akin to the notice of requirement under sec. 806.04(11), Stats., 4 and although the failure of notice in a sec. 806.04 declaratory action would require dismissal for lack of jurisdiction, we conclude the same result is not required in this case. In a declaratory action the failure to give the notice required by sec. 806.04(11) is fatal to the jurisdiction of the court. O'Connell v. Board of Education, Joint Dist. No. 10, 82 Wis.2d 728, 735, 264 N.W.2d 561 (1978); Town of Center v. City of Appleton, 70 Wis.2d 666, 669, 235 N.W.2d 504 (1975); Bollhoffer v. Wolke, 66 Wis.2d 141, 144, 223 N.W.2d 902 (1974). This conclusion is mandated by the language in sec. 806.04(11). See Bollhoffer v. Wolke, supra, at 143, 223 N.W.2d 902. Because the declaratory action itself is a creature of statute, the maintenance of a declaratory action requires strict compliance with sec. 806.04. O'Connell v. Board of Education, Joint Dist. No. 10, supra at 735, 264 N.W.2d 561. Unlike the notice requirement under the statutes, the Kurtz rule is a judicially mandated rule of procedure. Lack of compliance with this rule will not preclude review of a...

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