In Re The Estate Of James F. Sheppard. Thomas S. Ryan v. Estate Of James F. Sheppard, 2009AP1307.

Decision Date14 July 2010
Docket NumberNo. 2009AP1307.,2009AP1307.
Citation2010 WI App 105,789 N.W.2d 616
PartiesIn re the ESTATE OF James F. SHEPPARD. Thomas S. Ryan, Appellant, v. Estate of James F. Sheppard, Respondent.
CourtWisconsin Court of Appeals

789 N.W.2d 616
2010 WI App 105

In re the ESTATE OF James F. SHEPPARD.
Thomas S. Ryan, Appellant,
Estate of James F. Sheppard, Respondent.

No. 2009AP1307.

Court of Appeals of Wisconsin.

Submitted on Briefs May 7, 2010.
Opinion Filed July 14, 2010.

On behalf of the appellant, the cause was submitted on the briefs of William V. Gruber of Glojek Ltd., Attorneys at Law, West Allis.

On behalf of the respondent, the cause was submitted on the brief of Michael E. McMorrow, Mequon.



¶ 1 Thomas S. Ryan appeals from an order granting summary judgment to the Estate of James F. Sheppard (the Estate) on Ryan's claim for $105,000 arising from a contract for future personal services that were never rendered. Sheppard's death substantially frustrated the contract's principal purpose. We therefore affirm the circuit court's decision.

¶ 2 On April 11, 2007, Sheppard and Ryan entered into a two-year agreement for flight instruction services, with the relevant portions of the agreement providing:

(A). I James F. Sheppard agree to pay to Thomas S. Ryan $35,000 (thirty five thousand dollars) per year plus expenses starting on January 1st 2008 and ending on January 1st 2010 for pilot services as my personal instructor and pilot in command....

(B). I Thomas S. Ryan do hereby agree to and accept the terms and conditions as presented in the above paragraph (A) of this contract.

¶ 3 The parties had known each other since the late 1970s, and Sheppard had previously received flight instruction from Ryan. On July 2, 2007, before any flight instruction related to the April 11 agreement had taken place, Sheppard died. Ryan filed five claims against Sheppard's estate, including a claim for future services under the April 11, 2007 agreement totaling $105,000. 1 The Estate moved for summary judgment on each claim. The circuit court for Washington county found the contract agreement inadmissible as a written contract, but held a contract for future services existed outside of the statute of frauds with no need for a legally sufficient writing. Further, the court granted summary judgment to the Estate on the claim for future services. It concluded that Sheppard's death made the agreement unenforceable due to the frustration of its main purpose. Ryan now appeals.

789 N.W.2d 618

¶ 4 Where, as here, no material facts are in dispute and the other requirements of the summary judgment methodology are met, summary judgment is an appropriate means of raising and deciding the legal issues presented. See Smith v. State Farm Fire & Cas. Co., 127 Wis.2d 298, 300, 380 N.W.2d 372 (Ct.App.1985).

On appeal, we consider whether to grant summary judgment de novo, owing no deference to the circuit court's decision. Waters v. United States Fid. & Guar. Co., 124 Wis.2d 275, 278, 369 N.W.2d 755 (Ct.App.1985). This court applies the standards of Wis. Stat. § 802.08 (2007-08) 2 in the same manner as the circuit court. General Cas. Co. v. Hills, 209 Wis.2d 167, 175, 561 N.W.2d 718 (1997). The court must examine the pleadings to determine whether there are any material issues of fact in dispute. Park Bancorporation, Inc. v. Sletteland, 182 Wis.2d 131, 140, 513 N.W.2d 609 (Ct.App.1994). The party moving for summary judgment bears the burden of establishing the absence of a factual dispute and entitlement to judgment as a matter of law. Id. at 141, 513 N.W.2d 609.

¶ 5 The Estate contends that the April 11, 2007 agreement is unenforceable as a matter of law under the doctrine of frustration of purpose. It argues the agreement was for personal services, requiring physical participation and direction from Sheppard. As a result, Sheppard's death frustrated the main purpose of the contract. Moreover, the Estate has moved for an order ruling Ryan's appeal frivolous and granting fees and costs to the Estate.

¶ 6 Ryan argues the doctrines of frustration of purpose and impossibility do not apply to the agreement. He claims that Sheppard's obligations in the contract were not personal to him, allowing the Estate to assume Sheppard's duties-specifically by paying Ryan.

¶ 7 There are no Wisconsin cases directly on point with respect to frustration of purpose for a

personal services contract in which the person-who is to receive instruction for pay-dies before that instruction occurs and the person-who was to provide the instruction-seeks to uphold the agreement.

¶ 8 The April 11, 2007 agreement is a contract for personal services. Personal services are defined as “economic service[s] involving either the intellectual or manual personal effort of an individual.” Black's Law Dictionary 1180 (8th ed.2004). It is also a bilateral contract in which each party is an obligor on his or her own promise and an obligee on the other's. See id. at 342. Under the terms of the agreement, Sheppard was to pay Ryan in exchange for receiving personal flight instruction and the services of a pilot in command. We agree with the Estate that in either role Sheppard was directly and personally involved either as a student of instruction or as an employer, directing his “pilot in command.”

¶ 9 The well-settled rule is that death alone does not discharge contractual obligations. See Volk v. Stowell, 98 Wis. 385, 390, 74 N.W. 118 (1898). However, the many exceptions to this rule include personal service contracts, “where distinctly personal considerations are at the foundation of the contract.” See id.; see also Levy v. Wilmes, 239 Ill.App. 229, 232-33 (Ill.App.Ct.1926). In such a case, “the relation of the parties is dissolved by the death of him whose personal qualities constituted the particular inducement to the

789 N.W.2d 619

contract.” Volk, 98 Wis. at 390, 74 N.W. 118. Other jurisdictions have held that personal services contracts contain an implied condition “that sickness or death shall be an excuse for nonperformance” by either party.

Dubrow v. Briansky Saratoga Ballet Ctr., Inc., 68 Misc.2d 530, 327 N.Y.S.2d 501, 503 (N.Y.Civ.Ct.1971). 3 in such a situation, ...

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