Schwister v. Schoenecker

• Decision Date: 27 December 2002
• Docket Number: No. 01-2621.,01-2621.
• Citation: 654 N.W.2d 852,2002 WI 132,258 Wis. 2d 1
• Parties: Ruth M. SCHWISTER, Plaintiff-Respondent, v. Daniel V. SCHOENECKER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

258 Wis.2d 1

2002 WI 132

654 N.W.2d 852

Ruth M. SCHWISTER, Plaintiff-Respondent, v.Daniel V. SCHOENECKER, Defendant-Appellant.

No. 01-2621.

Supreme Court of Wisconsin.

Oral argument November 7, 2002.

Decided December 27, 2002.

For the defendant-appellant there were briefs (in the court of appeals) by David W. Neeb, Daniel J. Borowski, and Davis & Kuelthau, S.C., Milwaukee, and oral argument by Daniel J. Borowski.

For the plaintiff-respondent there was a brief (in the court of appeals) by Robert G. Pyzyk, James J. Carrig, and Niebler, Pyzyk, Klaver & Wagner LLP, Menomonee Falls, and oral argument by Robert G. Pyzyk.

¶ 1.SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This case comes before the court on certification from the court of appeals pursuant to Wis. Stat. § 809.61(1999-2000).¹It is an appeal from an order issued by the Circuit Court for Waukesha County, Kathryn W. Foster, Judge, granting the motion of Richard Schoenecker, personal representative of the Estate of Ruth Schwitzer, to be substituted as the plaintiff in this action.Ruth Schwitzer, the plaintiff, died after she brought this action against her son, the defendant, Daniel Schoenecker, for the return of funds that he was to manage on her behalf.We affirm the order of the circuit court and remand the cause for further proceedings.

¶ 2.The issue in this case is whether the motion for substitution was timely.Wisconsin Stat. § 803.10(1)(a) directs that a motion for substitution of a deceased party be dismissed when it is made more than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided by the statute.The specific question of law presented here is whether the defendant's suggestion of death, served only on the deceased plaintiff's attorney prior to the appointment of a personal representative, satisfied § 803.10(1)(a) and thereby activated the 90-day time period in which a motion for substitution was to be filed.

¶ 3.We hold, on the facts of this case, that service of the suggestion of death only on the deceased plaintiff's attorney of record was insufficient to activate the 90-day time period in which a motion for substitution is to be filed under Wis. Stat. § 803.10(1)(a).To trigger the 90-day time period in the present casethe defendant was obliged to serve his brothers as nonparties.Serving his brothers was necessary to reasonably protect their interests and the interests of the decedent when no personal representative had yet been appointed.Moreover, requiring the defendant, the surviving party in the present case, to locate and serve his brothers, who were known to the defendant to be potential successors or representatives of the decedent, would not unduly burden the defendant or unreasonably delay the litigation.²

¶ 4.Wisconsin Stat. § 803.10(1)(a) governs substitution for a deceased party and provides as follows:

803.10.Substitution of parties.

(1) Death.(a) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in s. 801.14 and upon persons not parties in the manner provided in s. 801.11 for the service of a summons.Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

¶ 5.A procedure for substitution of a deceased party is needed when an action survives the decedent's death.This concept is neither complicated nor controversial.Yet the number of reported cases and commentaries on the process of substitution suggests that Wis. Stat. § 803.10(1)(a) and the federal rule upon which it is based are neither simple nor uniformly interpreted.

I

¶ 6.The following timeline presents the pertinent undisputed facts in this case:

April 28, 2000: The complaint is filed by the plaintiffmother, Ruth M. Schwister, against one of her sons, Daniel V. Schoenecker.She is represented by Attorney Robert Pyzyk.

May 6, 2000: The parties agree to try to resolve the dispute and suspend the defendant's obligation to file an answer.

November 4, 2000: The plaintiffmother dies.

November 6, 2000: The circuit court dismisses the action for failure to prosecute.

December 13, 2000: The circuit court vacates its dismissal order and orders the defendant to file an answer prior to mid-February.³

February 8, 2001: The defendant files an answer and a suggestion of death with the Waukesha County Clerk of Circuit Court,⁴ serving both documents on Attorney Pyzyk by mail.

May 10, 2001: More than 90 days have elapsed since the suggestion of death was filed in circuit court on February 8, 2001.

June 18, 2001: Attorney Pyzyk informs the circuit court and defendant's attorney at a status conference that the plaintiff died and that a request for substitution will be filed.⁵The circuit court sets August 1, 2001, as the date for amending the pleadings.

July 5, 2001: Richard Schoenecker, one of the plaintiff's three sons, petitions the probate court to appoint him personal representative of his mother's estate in accordance with her will.Richard Schoenecker is represented in the probate proceedings by Attorney Pyzyk.Copies of the petition and will are forwarded to the defendant.

July 16, 2001: The defendant files a motion to dismiss the action pursuant to Wis. Stat. § 803.10(1)(a), claiming that a motion for substitution was not properly filed within 90 days of his service of the suggestion of death on Attorney Pyzyk.

July 30, 2001: Richard Schoenecker files a motion for substitution requesting that he be substituted as plaintiff.The affidavit of Attorney Pyzyk attached to the motion for substitution states that the only assets of the estate are the current claims pending in this appeal.

July 31, 2001: The probate court appoints Richard Schoenecker the personal representative of the plaintiff's estate.

August 6, 2001: The circuit court conducts a hearing on the defendant's motion to dismiss the action and on the personal representative's motion for substitution.

September 17, 2001: The circuit court issues an order substituting Richard Schoenecker, the personal representative of the plaintiff's estate, for the deceased plaintiff.The circuit court holds that the defendant's service of the suggestion of death on the attorney who had represented the deceased plaintiff did not trigger the 90-day substitution period under Wis. Stat. § 803.10(1)(a).

November 8, 2001: The court of appeals grants the defendant leave to appeal this order.

June 26, 2002: The court of appeals certifies the appeal to this court.

II

[1]

¶ 7.The interpretation of Wis. Stat. § 803.10(1)(a) and its application to the undisputed facts in the case at bar present questions of law that this court determines independent of the circuit court, but benefiting from its analysis.⁶

[2-5]

¶ 8.Wisconsin Stat. § 803.10(1)(a) is a rule adopted by the supreme court in 1975.When this court interprets court rules, it turns to the rules of statutory interpretation for guidance.The goal of interpreting a court rule is to ascertain and give effect to the intent of the supreme court in adopting the rule.⁷The first step in ascertaining the intent of the supreme court is to look to the language adopted.When the language of the court rule does not give sufficient guidance, we must look to rules of interpretation for assistance.We may look to the history, the objective, and the subject matter of the rule to divine its meaning.

¶ 9.The language of Wis. Stat. § 803.10(1)(a) provides little guidance for ascertaining who must be served with a suggestion of death in order to trigger the 90-day period for filing a motion for substitution.The second sentence of § 803.10(1)(a) governs the filing of a motion for substitution.⁸A motion for substitution may be made by any party or by representatives or successors of the deceased party.⁹

¶ 10.The notice of the motion for substitution is served, along with a notice of hearing, on the parties pursuant to § 801.14(service by mail on the party or party's attorney) and on persons who are not parties pursuant to § 801.11(personal service or by leaving document at usual place of abode).¹⁰

¶ 11.Since the parties will ordinarily be named and known, service by mail on them or their attorneys should present little difficulty.Serving nonparties, however, raises difficulties;Wis. Stat. § 803.10(1)(a) does not explain who are nonparties to be served.

¶ 12.The next sentence in Wis. Stat. § 803.01(1)(a) governs the service of the suggestion of death, which may, but need not, precede the motion for substitution.It is this sentence in § 803.10(1)(a) that is specifically at issue in the present case.¹¹

¶ 13.The service of the suggestion of death is significant because it limits the time within which a motion for substitution can be made.Wisconsin Stat. § 803.10(1)(a) provides that an action shall be dismissed against the deceased party unless a motion for substitution is made within 90 days after the fact of death is "suggested" on the court record by service in the same manner as a motion for substitution.¹²

¶ 14.Wisconsin Stat. § 803.10(1)(a) therefore appears to require that the suggestion of death, like the motion to substitute, be served on the parties and on persons who are not parties.Consequently, the language on filing a suggestion of death is not helpful.Like the language in the first part of the court rule relating to the motion for substitution, it does not state which nonparties are to be served.

¶ 15.Without clear language in Wis. Stat. § 803.10(1)(a) identifying the nonparties who must be served with a...