Ray v. Anchor Packing Co.

• Decision Date: 27 April 1993
• Docket Number: No. 92-2179,92-2179
• Citation: 502 N.W.2d 618,176 Wis.2d 512
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Walter E. RAY, Plaintiff-Appellant, v. THE ANCHOR PACKING COMPANY, a Delaware Corporation, the A.P. Green Refractories Co., a Delaware Corporation, Armstrong World Industries, Inc., a Pennsylvania Corporation, Certainteed Corporation, a Maryland Corporation, GAF Corporation, a Delaware Corporation, National Gypsum Company, a Delaware Corporation, Cleavor Brooks Co., Inc., a Wisconsin Corporation, Fibreboard Corporation, a Delaware Corporation, Garlock, Inc., a New York Corporation, Owens Corning Fiberglas, a Delaware Corporation, Pittsburgh Corning Corporation, a Pennsylvania Corporation, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 618

502 N.W.2d 618

176 Wis.2d 512

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Walter E. RAY, Plaintiff-Appellant, v.THE ANCHOR PACKING COMPANY, a Delaware Corporation, the A.P Green Refractories Co., a Delaware Corporation, Armstrong World Industries, Inc., a Pennsylvania CorporationCertainteed Corporation, a Maryland Corporation, GAF Corporation, a Delaware Corporation, National Gypsum Company, a Delaware Corporation, Cleavor Brooks Co., Inc., a Wisconsin Corporation, Fibreboard Corporation, a Delaware Corporation, Garlock, Inc., a New York Corporation, Owens Corning Fiberglas, a Delaware Corporation, Pittsburgh Corning Corporation, a Pennsylvania CorporationDefendants-Respondents.

No. 92-2179.

Court of Appeals of Wisconsin.

April 27, 1993.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

PER CURIAM.

Walter Ray, deceased, appeals an order denying his motion to vacate an order that dismissed his personal injury action.The trial court dismissed the action after Ray's attorney failed to substitute a proper party within ninety days after service of a suggestion of death.Ray contends that the suggestion of death was defective in its content and the manner of service and that, if the suggestion of death was sufficient to start the running of the ninety-day period for substituting parties, the trial court should have enlarged the time for substituting parties because the defendants were not prejudiced.We reject these arguments and affirm the order.

Walter Ray died after initiating a personal injury action against numerous defendants.One of the defendants filed a suggestion of death and served it on Ray's attorney.Almost eleven months later, the defendants moved to dismiss the action because Ray's counsel had not moved to substitute a proper partyplaintiff.Neither Ray's counsel nor any representative of his estate appeared at the hearing.The trial court granted the motion to dismiss.Ray's attorney then filed a motion on behalf of Carmen Murray, individually and as executrix of Ray's estate, to vacate the judgment on the ground of excusable neglect.The trial court denied the motion and reiterated its previous decision dismissing the action.

The suggestion of death was not technically defective and began running the ninety-day statutory period for filing a motion to substitute parties.Citing Wheeler v. General Tire & Rubber, 142 Wis.2d 798, 808, 419 N.W.2d 331, 335(Ct.App.1987), Ray contends that the suggestion of death was not "formally made on the record."In Wheeler, the court held that a letter stating that a party died was not a valid suggestion of death.Here, the suggestion of death was a formal, captioned document, filed and served.No additional formality is required by the statutes.

Ray contends that the suggestion of death must identify a proper party substitute.SeeWick v. Waterman, 143 Wis.2d 676, 679, 421 N.W.2d 872, 873(Ct.App.1988).In Wick, the defendant died and his own attorneys filed suggestions of death.The court held that the ninety-day period prescribed by statute had not begun, as the suggestions of death had not indicated who would succeed the defendant.The court supported its decision by emphasizing the unfairness inherent in allowing a deceased client's counsel to file a suggestion of death without identifying an appropriate substitute party, thereby forcing the other party to attempt to find a proper substitute for his opponent within ninety days.Here, the suggestion of death was made by an opposing party.The successor plaintiff, Ray's estate, was not placed in the impossible position of determining who should be deemed a successor to an opposing party.

Ray argues that the defendant's service of the suggestion of death on the deceased's attorney was improper for two reasons: it was served by mail, and it was not served personally on the administratrix.This issue was not properly preserved for two reasons.First, the issue was not raised in the trial court.This court generally does not review issues raised for the first time on appeal.SeeWirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145(1983).Second, the administratrix's appearance in the circuit court by motion to vacate the judgment constitutes a waiver of defects in service of process.Seesec. 802.06(8)(a), Stats.

Even if the alleged defects in service of process were properly before this court, this issue provides no basis for relief.Section 803.10(1)(a), Stats., does not require personal service on the administrator of the estate.In some cases, there will be no administrator appointed at the time the suggestion of death is filed.A deceased plaintiff's counsel is in the best position to inform interested people that they must substitute for the decedent or risk losing any interest they may have in the litigation.Accord, Yonofsky v. Wernick, 362 F.Supp. 1005(S.D.N.Y.197...