Zobel by Hancox v. Fenendael, 84-1539

• Decision Date: 20 November 1985
• Docket Number: No. 84-1539,84-1539
• Citation: 379 N.W.2d 887,127 Wis.2d 382
• Court: Wisconsin Court of Appeals
• Parties: Lillian ZOBEL, by Herbert Z. HANCOX and Helen W. Hancox, her guardians, Plaintiff-Appellant, v. Lee FENENDAEL and Gloria Fenendael, his wife, Defendants-Respondents. d

Page 887

379 N.W.2d 887

127 Wis.2d 382

Lillian ZOBEL, by Herbert Z. HANCOX and Helen W. Hancox, her guardians, Plaintiff-Appellant, v. Lee FENENDAEL and Gloria Fenendael, his wife Defendants-Respondents.^d No. 84-1539.

Court of Appeals of Wisconsin.

Argued July 23, 1985.

Opinion Released Nov. 20, 1985.

Opinion Filed Nov. 20, 1985.

David J. Colwin, Fond du Lac, argued, for plaintiff-appellant; Raymond R. Colwin, of Colwin, Fortune, Colwin, Pomeroy & English, S.C., on brief.

Kenan J. Kersten, Milwaukee, argued, for defendants-respondents; Kersten & McKinnon, and Louis R. Ullenberg, on brief.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Herbert and Helen Hancox, guardians of Lillian Zobel, appeal from a judgment entered, following a jury trial, dismissing their complaint which sought to void a gift by deed executed by Zobel to Lee and Gloria Fenendael. The jury determined that Zobel was competent at the time she made the gift.

During trial, the Hancoxes sought to amend their complaint to conform to certain evidence which showed that Zobel executed the deed while she was subject to a conservatorship. The Hancoxes claimed that Zobel's gift was void, as a matter of law, since it was made without the approval of the conservator or conservatorship court. The trial court denied the motion to amend the pleadings. We conclude the denial of the motion was an abuse of discretion since no surprise or prejudice to the Fenendaels is demonstrated. We also conclude, as a matter of law, that a conservatee lacks the capacity to make a gift without the approval of the conservator or the conservatorship court. Therefore, we reverse and remand with instructions to allow amendment to the pleadings and to enter judgment in favor of the Hancoxes.

On December 20, 1979, Lillian Zobel sold her house on a land contract to the Fenendaels. In November 1981, Zobel petitioned the circuit court for the appointment of a conservator of her estate. The conservatorship court appointed the Hancoxes as conservators of Zobel's estate. After the appointment of the Hancoxes, Zobel decided that she wanted to forgive the balance of the land contract and gift her house to Gloria Fenendael. In March 1982, Zobel executed a deed to the Fenendaels in satisfaction of the balance of the land contract. She did not inform the Hancoxes or the conservatorship court of the pending transaction nor seek their approval of the gift. ¹

The amended complaint upon which the jury trial was conducted alleged that Zobel was not competent to make the gift by deed in March 1982. ² Based upon these allegations, the Hancoxes sought foreclosure of the land contract. During the course of the Hancoxes' case-in-chief, testimony and documentary evidence established that Zobel was subject to the conservatorship at the time she executed the March 1982 deed in satisfaction of the land contract.

At the close of the Hancoxes' case, the trial court judicially noticed the conservatorship and guardianship file regarding Zobel. The Hancoxes moved for leave to amend their pleadings to include "the defense that the gift was not approved either by the conservator or the court." ³ Based upon this amendment, the Hancoxes then requested judgment as a matter of law contending that Zobel, as a conservatee, lacked the capacity to make a gift. The trial court took the motions under advisement and stated that it would proceed to take a verdict.

At the close of the evidence, the Hancoxes again moved to amend their amended complaint to conform to the evidence and for judgment. The trial court again deferred ruling on the motions until a verdict was obtained. By decision on motions after verdict, the trial court denied the motion to amend the pleadings. The trial court's decision also, however, determined that the approval of the conservator or the conservatorship court was not required to render Zobel's gift effective. ⁴

The Fenendaels rely upon sec. 802.06(2) and (4), Stats., which provides, in part:

(2) HOW PRESENTED. Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or 3rd party claim shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion....

(4) PRELIMINARY HEARINGS. The defenses specifically listed in sub. (2), whether made in a pleading or by motion ... shall be heard and determined before trial on motion of any party, unless the judge to whom the case has been assigned orders that the hearing and determination thereof be deferred until the trial.

[Emphasis added.]

This statute, however, does not apply to complaints. It is limited, on its face, to defenses asserted in a responsive pleading. Therefore, the Fenendaels' reliance on this statute and the related line of cases they cite is misplaced. ⁵

Rather, the governing statute is sec. 802.09(2), Stats. The most complete discussion and analysis of this statute is contained in State v. Peterson, 104 Wis.2d 616, 312 N.W.2d 784 (1981). Peterson bifurcates the statute into two parts governing two different fact situations. The first addresses a situation where the issues are tried by the express or implied consent of the parties:

AMENDMENTS TO CONFORM TO THE EVIDENCE. If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues....

Sec. 802.09(2). This part of the statute appears to be mandatory; if the trial court concludes that the parties consented to the trial of the issues, the court must conform the pleadings to the proof. Peterson at 629, 312 N.W.2d at 790.

The second part of the statute addresses a situation where an objection is made at trial that the evidence offered is not within the issues raised by the pleadings. Id.

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice such party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

Sec. 802.09(2), Stats. When objection is made, the statute grants the court discretion to allow the amendment and encourages the court "to do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his ... defense upon the merits." Peterson at 629-30, 312 N.W.2d at 790-91, quoting Fed.R.Civ.P. 15(b).

Our reading of the entire record in this case reveals that the existence of the conservatorship was alluded to scores of times without objection. Documentary evidence establishing the existence of the conservatorship was stipulated into evidence. At various stages in the proceedings, the Fenendaels themselves put in evidence concerning the conservatorship. The record reveals, by our count, seventeen references to the conservatorship by either the Hancoxes or the Fenendaels before the Fenendaels objected on the relevancy and pleading grounds asserted on this appeal. Under these circumstances, we conclude that the Fenendaels did not timely object to the proofs submitted. Therefore, we analyze the issue on the motion to amend the pleadings as one governed by the first portion of sec. 802.09(2), Stats. This requires us to determine whether the issues relating to the conservatorship were tried by the express or implied consent of the parties.

Here, there was no express consent. ⁶ Thus, if the Fenendaels consented to trial of the conservatorship issues, the consent must be implied.

Whether an issue has been tried by implied consent is to be determined by the circuit court; the circuit court must make findings on the issue of consent, because once consent is found, the circuit court has no choice but to amend the pleadings. Peterson at 631, 312 N.W.2d at 791. Here, the circuit court did not make any finding that there was--or was not--implied consent. We are thus faced with the issue of whether we can on the basis of the record before us determine whether, as a matter of law, the Fenendaels understood, were aware of, or had actual notice that the issue of Zobel's legal capacity as a conservatee was being raised by the evidence concerning the conservatorship. See id.

Implied consent is generally held to exist where there is no objection to the introduction of evidence on the unpleaded issue and where the party not objecting is aware that the evidence goes to the unpleaded issue; actual notice to the parties appears to be the key factor in determining whether there was implied consent. Id. at 630, 312 N.W.2d at 791. As noted above, the evidence concerning the conservatorship was admitted without timely objection. The more difficult question is whether the Fenendaels were aware that the conservatorship evidence went to the issue of Zobel's capacity to make a gift--an unpleaded issue. In order to find implied consent, it must appear that the parties understood the evidence was aimed at the unpleaded issue. Id. Because the evidence on the conservatorship issues was also relevant to the issue of Zobel's competency, the Fenendaels may not have been aware that the Hancoxes were raising a new unpleaded issue. Thus, we cannot conclude, as a matter of law,...