ESTATE OF KITZMAN v. KITZMAN

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Docket Number

No. 90-1616.

Attorney(S)

For the plaintiff-appellant the cause was submitted on the briefs of Paul J. Lenz of Altoona. For the defendant-respondent, Christian R. Kitzman and Milwaukee Mutual Insurance Company, the cause was submitted on the briefs of Maris Rushevics of Anderson, Shannon, O'Brien, Rice Bertz of Stevens Point. For the defendant-respondent, State Farm Insurance Company, the cause was submitted on the briefs of John D. Claypool, of Herrling, Clark, Hartzheim Siddall, Ltd. of Appleton.

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Smart Summary

Factual and Procedural Background

Janet Hacker, as personal representative of the estate of Emma Kitzman, filed a complaint seeking damages for injuries Emma Kitzman sustained in an automobile accident. The complaint was filed on February 9, 1990, and the parties agreed that the statute of limitations barred claims after February 27, 1990. In May 1990, defendants moved to dismiss the complaint on the grounds that the estate lacked capacity to sue. The trial court granted the dismissal in June 1990, holding that the complaint was a nullity because the estate had no capacity to sue and thus no action was commenced before the statute of limitations expired. The appellant contended that she should be allowed to amend the complaint to correct the capacity defect.

Legal Issues Presented

Whether the appellant was entitled to amend the complaint under Wisconsin Statute section 802.09 despite the estate's lack of capacity to sue.
Whether an amendment adding a proper party plaintiff relates back to the date of the original complaint for statute of limitations purposes.
Whether a complaint filed by a party lacking capacity to sue is a nullity that cannot be amended.

Arguments of the Parties

Appellant's Arguments

The estate lacks capacity to sue, but the complaint should be amendable under Wis. Stat. § 802.09.
The amendment would relate back to the original complaint date, preserving the claim despite the statute of limitations.

Defendants' Arguments

Section 802.09(3) presupposes an action filed by a party with legal capacity to sue, and since no such party filed the complaint, it is a nullity.
Because the complaint is a nullity, no pleadings exist that can be amended, and the statute of limitations bars the claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Korkow v. General Cas. Co. of Wis., 117 Wis.2d 187, 344 N.W.2d 108 (1984)	Amendment adding a new plaintiff asserting a claim based on the same events relates back to the original complaint under Wis. Stat. § 802.09(3), to prevent unfair statute of limitations defenses.	The court applied Korkow to hold that the defendants were fairly notified by the original complaint, and amendment changing the plaintiff's identity would not prejudice them.
Missouri, K. T. Ry. v. Wulf, 226 U.S. 570 (1913)	Trial court may allow amendment to add personal representative as plaintiff when original plaintiff lacked capacity to sue.	The court cited this precedent to support allowing amendment despite initial lack of capacity.
Goss v. Hutchins, 751 S.W.2d 821 (Tenn. 1988)	An action brought against an estate without naming the personal representative is not a complete nullity if the personal representative is not prejudiced.	The court relied on this case to reject the defendants' nullity argument and to affirm that the complaint gave fair notice.

Court's Reasoning and Analysis

The court began by acknowledging the estate's lack of capacity to sue and the trial court's dismissal based on that defect. However, it emphasized that under Wis. Stat. § 802.09(1), a party may amend pleadings once as a matter of course within six months of filing. Section 802.09(3) allows amendments that arise from the same transaction or occurrence to relate back to the original pleading's filing date, mitigating statute of limitations concerns.

Relying on Korkow, the court found that the defendants had adequate notice of the claim from the original complaint, and an amendment changing the plaintiff's identity would not prejudice them. The defendants' argument that the complaint was a nullity because it was filed by a party lacking capacity was rejected. The court reasoned that the complaint was defective but not a nullity; it provided fair notice and did not affect the defendants' substantial rights, consistent with Wis. Stat. § 805.18(1), which directs courts to disregard errors or defects that do not affect substantial rights.

The court further supported its reasoning by citing longstanding precedent from the U.S. Supreme Court and other jurisdictions that allow amendments to correct party identity even after limitations periods have passed, provided the original pleadings gave fair notice.

Accordingly, the court concluded that the appellant was entitled to amend the complaint, and that such amendment would relate back to the original filing date, preserving the claim despite the statute of limitations.

Holding and Implications

The judgment dismissing the complaint was reversed and the cause remanded with directions to allow the appellant to amend the complaint.

The court's holding means that the appellant may correct the pleading defect by substituting the proper party plaintiff, with the amendment relating back to the original complaint date. This preserves the claim despite the statute of limitations. The decision does not establish a new precedent but applies existing legal principles to uphold the right to amend pleadings to correct capacity defects without prejudicing defendants.

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The ESTATE OF Emma J. KITZMAN, Plaintiff-Appellant, v. Christian R. KITZMAN, Ste

GARTZKE, P.J.

Janet Hacker, as the personal representative of the estate of Emma Kitzman, appeals from a judgment dismissing the complaint against the defendants. The complaint is brought in the name of the estate. We hold that the appellant was entitled to amend the complaint under sec. 802.09, Stats. We therefore reverse.

The summons and complaint were filed on February 9, 1990. The complaint seeks damages from the defendants for injuries Kitzman suffered in an automobile accident. The parties agree that the statute of limitations barred the claim after February 27, 1990. In May 1990, the defendants moved to dismiss on grounds that the estate has no capacity to sue. The trial court granted the motion in June 1990, citing sec. 777.01, Stats. That statute provides in relevant part that if a cause of action survives, the executors or administrators may maintain an action if the decedent could if living. The court stated that it would "be willing to give all the liberal considerations to amendment of the pleadings," but was unable to do so because the complaint was a nullity, and therefore no action had been commenced before the running of the statute of limitations.

The appellant concedes that the estate lacks the capacity to sue. She argues that she should have been allowed to amend the complaint under sec. 802.09, Stats. Whether the defect in the complaint bars such amendment is a question of law we decide without deference to the trial court. Section 802.09, Stats., provides in relevant part:

(1) A party may amend the party's pleading once as a matter of course at any time within 6 months after the summons and complaint are filed. . ..

. . ..

(3) If the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading.

In Korkow v. General Cas. Co. of Wis., 117 Wis.2d 187, 344 N.W.2d 108 (1984), the court concluded that an amendment adding a new plaintiff asserting a new claim based on the same events relates back to the original complaint:

The evident purpose behind sec. 802.09(3), Stats., . . . is to ameliorate the effect of the statute of limitations in situations where the original pleadings provided fair notice to the opposing party of the claim or defense raised. There is nothing in either the language or the purpose of the rule evidencing its inapplicability to amendments changing plaintiffs. Provided a defendant is fully apprised of a claim arising from specified conduct by the original pleading, his ability to protect himself will not be prejudicially affected if a new plaintiff is added and he should not be permitted to make a statute of limitations defense.

Id. at 196, 344 N.W.2d at 113 (citation omitted).

Here, as in Korkow, the defendants were fully apprised of the claim by the original complaint. Nothing in that complaint need change other than its references to the identity of the plaintiff. Amendment will not prejudice defendants.

The defendants argue that because sec. 802.09(3), Stats., allows a "party" to amend a pleading, the statute presupposes that an action has been filed by a party with legal capacity to sue. They continue their argument to the effect that if no such action has been filed by a "party," it is as if no summons and complaint had ever been filed. Defendants conclude that the complaint is a nullity, and no pleadings exist which can be amended. We reject the argument.

The complaint is not a nullity. It is a poorly drawn pleading which nevertheless amply provides the "fair notice" described by the Korkow court as a predicate for allowing amendment under sec. 802.09(3), Stats. It is undeniably defective, but the defect must be disregarded, since it does not affect the substantial rights of the defendants. Section 805.18(1), Stats., provides: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party."

Our view of the matter is hardly new or novel. Seventy-eight years ago the United States Supreme Court held that a trial court properly allowed an amendment to add the personal representative as the plaintiff in an action erroneously brought by decedent's mother who lacked capacity to sue. Missouri, K. T. Ry. v. Wulf, 226 U.S. 570 (1913). Other courts have rejected the "nullity" argument. See Goss v. Hutchins, 751 S.W.2d 821, 824-25 (Tenn. 1988) (although estate cannot sue or be sued, action brought against estate is not a "complete nullity" when personal representative not prejudiced by failure to name him).

We conclude that the trial court erred when it ruled it was unable to allow an amendment. Appellant was entitled to amend the complaint "as a matter of course" under sec. 802.09(1), Stats., since the amendment would have been within six months of the filing of the complaint. On remand, the trial court should allow the plaintiff a reasonable time to amend her complaint. The amendment will relate back to the date of the original complaint. Section 802.09(3), Stats. By the Court. — Judgment reversed and cause remanded with directions.

One defendant argues that since the plaintiff never filed an amended complaint, the doctrine of relation back of amendments was not presented to the trial court, and therefore we should reject that argument as being presented for the first time on appeal. While it is true that plaintiff did not file amended pleadings, at the hearing on defendants' motion to dismiss, plaintiff's counsel stated three times that amendment of the complaint was the proper response to the defendants' motion. Such a filing would have been futile after the trial court's ruling. The argument was sufficiently presented to the trial court.