Flejter v. Estate of Flejter

• Decision Date: 05 December 2000
• Docket Number: No. 99-2863.,99-2863.
• Citation: 2001 WI App 26,240 Wis.2d 401,623 N.W.2d 552
• Parties: IN the MATTER OF the ESTATE OF Carl FLEJTER, Deceased: Patricia A. FLEJTER, Appellant. v. ESTATE OF Carl FLEJTER, by its Personal Representative, Diane Migacz, Respondent.
• Court: Wisconsin Court of Appeals

240 Wis.2d 401

2001 WI App 26

623 N.W.2d 552

IN the MATTER OF the ESTATE OF Carl FLEJTER, Deceased:

Patricia A. FLEJTER, Appellant.¹ v. ESTATE OF Carl FLEJTER, by its Personal Representative, Diane Migacz, Respondent.

No. 99-2863.

Court of Appeals of Wisconsin.

Submitted on briefs October 3, 2000.

Decided December 5, 2000.

On behalf of the appellant, the cause was submitted on the briefs of Bruce A. Tammi of Tammi, Cohn & Cavey, Milwaukee.

On behalf of the respondent, the cause was submitted on the brief of Charles H. Barr of Croen & Barr LLP, Milwaukee.

Before Wedemeyer, P.J., Fine and Curley, JJ.

¶ 1. WEDEMEYER, P.J.

Patricia A. Flejter appeals from that part of an order for summary judgment concluding that the personal representative of the Estate of Carl Flejter timely served and filed an objection to her claim. She also appeals from that part of a judgment denying her claim to the proceeds of an insurance policy and her claim for reimbursement for real estate taxes paid.

¶ 2. Patricia raises two issues: (1) whether the trial court erred as a matter of law when it concluded that the personal representative's objection to her claim against the estate was timely filed; and (2) whether the trial court improperly construed the final stipulation in the judgment for divorce to deny her proceeds from a life insurance policy; and to deny her reimbursement for real estate taxes she paid on her homestead. Because the trial court did not err in any respect, we affirm.

I. BACKGROUND

¶ 3. Patricia and the decedent, Carl, were divorced by a judgment entered February 15, 1979. The divorce judgment incorporated a final stipulation signed by both parties. The final stipulation was drafted by Patricia's attorney. Carl died on July 5, 1997.

¶ 4. On November 11, 1997, the personal representative filed an application for informal administration of Carl's estate. Pursuant to statute, the probate registrar set November 19, 1997, as the date for barring claims. On November 11, 1997, Patricia filed a claim against the estate for $65,774, which was later reduced by amendment to $57,001.13. On November 12, 1997, Patricia's counsel mailed a copy of the claim to the attorney for the estate. On January 14, 1998, the personal representative served and filed an objection to the claim and demanded formal proceedings. After discovery, both parties moved for summary judgment. The issue of whether the objection to the claim was timely served and filed was raised for the first time in Patricia's summary judgment brief.

¶ 5. After hearing the summary judgment motion, the trial court ruled that the objection was timely filed. The court also found that the documentary evidence from the Social Security Administration, and the testimony of the personal representative, established that Carl was in fact, disabled. No other issues were decided at that hearing.

¶ 6. The contested claim, however, proceeded to a bench trial. As pertinent to this appeal, the claim consisted of: (1) fourteen alleged payments of real estate taxes for the claimant's homestead for the years 1992 through 1996; and (2) proceeds of an insurance policy on Carl's life in the amount of $15,000.² After hearing the evidence, the trial court dismissed Patricia's claim in its entirety. She now appeals.

II. DISCUSSION

A. Objection to Claim.

¶ 7. Patricia first contends that the trial court erred when it found that the personal representative's objection to her claim was timely pursuant to WIS. STAT. § 859.33(1) (1997-98).³ She states her counsel filed her claim on November 11, 1997, and mailed a copy of the claim to the estate's counsel on November 12, 1997. The estate objected on January 14, 1998, sixty-three days after Patricia filed her claim. Patricia argues that the estate's objection violated the sixty-day deadline set forth in § 859.33(1). The trial court found that the objection was timely because it was served on Patricia by mail, thereby triggering the three-day mailing extension in § 801.15(5)(a).⁴

¶ 8. Patricia claims that the trial court's application of the three-day mailing extension is not supported by the language of WIS. STAT. § 859.33, its legislative history, or Wisconsin case law. The estate responds that WIS. STAT. § 801.15(5)(a), which applies generally to all civil proceedings, permits adding on three extra days to the deadline for the objection because service by mail is permitted under § 859.33(1). Thus, the objection was timely executed. We conclude that the trial court did not err in applying § 801.15(5)(a) to the sixty-day deadline for objections in § 859.33(1).

STANDARD OF REVIEW

[1]

¶ 9. The issue in this case involves statutory construction, which presents a question of law. See Sprague v. Sprague, 132 Wis. 2d 68, 71, 389 N.W.2d 823, 824 (Ct. App. 1986)

. We review questions of law independent of the trial court's decision, although we often profit greatly from the trial court's careful and thorough analysis.

[2]

¶ 10. "Statutes for the same subject, although in apparent conflict, are construed to be in harmony if reasonably possible." N. SINGER, 2B SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION § 51.02, at 122 (5th ed. 1992); see also State v. Wagner, 136 Wis. 2d 1, 5, 400 N.W.2d 519 (Ct. App. 1986)

. "Statutes are considered to be in pari materia when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object. To be in pari materia, statutes need not have been enacted simultaneously or refer to one another." SUTHERLAND, § 51.03.

¶ 11. In State Farm Mutual Automobile Ins. Co. v. Kelly, 132 Wis. 2d 187, 389 N.W.2d 838 (Ct. App. 1986), quoting SUTHERLAND, we stated:

When determining the meaning and effect of statutory sections in pari materia,

"[i]t is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter. In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in those prior statutes. Thus, they all should be construed together."

Id. at 190 (citation omitted). Professor Sutherland further instructs that:

"General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail."

State v. Amato, 126 Wis. 2d 212, 217, 376 N.W.2d 75 (Ct. App. 1985) (emphasis omitted).

ANALYSIS

[3]

¶ 12. Patricia contends that the sixty-day deadline in WIS. STAT. § 859.33(1) cannot be extended by the three-day mailing provision of WIS. STAT. § 801.15(5)(a). This court disagrees with that assertion. First, the rules of civil procedure, which encompass WIS. STAT. chapters 801-847, apply in all civil actions and special proceedings, except where a different procedure is prescribed by statute or rule. See WIS. STAT. § 801.01(2). Probate proceedings are special proceedings to which the rules of civil procedure apply. See Estate of Stoeber v. Pierce, 36 Wis. 2d 448, 452, 153 N.W.2d 599 (1967). There is no language in § 859.33(1) prohibiting the application of the three-day mailing extension.⁵

[4]

¶ 13. Second, an examination of the development of the two statutes throughout the course of history demonstrates that the two statutes are not in conflict with each other and, in fact, can be read in harmony consistent with the trial court's decision in this case. Because we conclude that the statutes do not actually conflict, the statutory construction rule indicating that specific statutes control over general statutes does not apply. See Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 22, 353 N.W.2d 812 (Ct. App. 1984)

. Here there is no dispute that mailing is an alternative method of service for personal service in civil actions and special proceedings. In a historical context, from the earliest years of our state's existence, service by mail has been recognized as an alternate method of service of process.

¶ 14. The key feature associated with service by mail is extending the time for a response, under the theory that service is complete at the moment of mailing. The general concept of adding time to documents served by mail was part of the original Field Code. Laws of 1856, ch. 120, § 315. The Field Code had an add-on provision of one day per fifty mile formula for mail service. See id. When the legislature adopted the Field Code, it rejected the per/mile formula and instead "simply doubled the time required when personal service was used" for a response. Charles D. Clausen & David P. Lowe, The New Wisconsin Rules of Civil Procedure Chapters 801-803, 59 MARQ. L. REV. 31 (1976). In 1956, by supreme court rule, WIS. STAT. § 269.36 (1955) was amended to replace the "doubling rule" with a five-day extension to the deadline when documents were served by mail. See id. The current three-day addon for mailing provision contained in WIS. STAT. § 801.15(5) was created by supreme court order effective January 1, 1976. See id. The Judicial Council felt that three extra days for mailing was sufficient. See id. Thus, it can be seen that the "add-on" feature, when service is accomplished by mail, has been a constant part of our procedural statutory history.

¶ 15. The procedure, however, for filing a claim against an estate and serving an objection to it was not introduced until May 1, 1953, by supreme court order. It was codified as WIS. STAT. § 313.05(3). As pertinent to our analysis, this subsection provided that the personal representative could contest a claim by mailing a copy of the objection to the claimant within sixty days after either the time limited by the court for filing claims, or any order extending the time for filing the claim.

¶ 16. In 1969, WIS. STAT. § 313.05(3) was repealed and recreated as ...