WICK v. WATERMAN

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Docket Number

No. 87-1232.

Attorney(S)

For the plaintiff-appellant the cause was submitted on the briefs of James H. Mathis and Schechter and Mathis, of La Crosse. For the defendant-respondent the cause was submitted on the brief of Bryant Klos and Steele, Klos, Flynn-Chartered, of La Crosse, and Alex Cameron and Cameron, Nix, Collins Quillan, Ltd., of La Crosse.

Judges

GARTZKE, P.J.

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Smart Summary

Factual and Procedural Background

Wilbert Wick, as personal representative of the estate of Henry Wick, brought a complaint against Dale Waterman alleging wrongful acquisition of estate assets. During the litigation, Waterman died. Waterman's attorney filed a formal "Suggestion of Death" with the court, noting Waterman's death but failing to identify a proper substitute party. Wilbert Wick moved to substitute himself as special administrator of Waterman's estate after 90 days had passed since the suggestion of death, although he had not yet been appointed at that time. The trial court dismissed Wick's complaint because the substitution was not made within the 90-day period prescribed by sec. 803.10(1)(a), Stats.

Legal Issues Presented

Whether, under sec. 803.10(1)(a), Stats., a suggestion of death that fails to identify a proper substitute party triggers the running of the 90-day period to move to substitute a party.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mogilka v. Jeka, 131 Wis.2d 459, 471, 389 N.W.2d 359, 364 (Ct. App. 1986)	Statutory construction and application of law to facts is a question of law, warranting no deference to trial court's view.	Used to affirm that statutory interpretation is a question of law reviewed de novo.
Rivera v. Safford, 126 Wis.2d 462, 465, 377 N.W.2d 187, 188 (Ct.App. 1985)	Clarifies that appellate courts owe no deference to trial court's legal conclusions.	Supported the standard of review applied by the court.
Wheeler v. General Tire Rubber Co., 142 Wis.2d 798, 807, 419 N.W.2d 331, 334 (Ct.App. 1987)	Wisconsin’s sec. 803.10(1)(a) is based on Federal Rule 25(a)(1), allowing federal precedents to guide construction.	Provided justification for consulting federal cases interpreting similar procedural rules.
Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969)	A suggestion of death failing to identify a proper substitute party does not trigger the 90-day substitution period.	Adopted by the court to hold that the suggestion of death here was insufficient to start the 90-day clock.
Al-Jundi v. Rockefeller, 88 F.R.D. 244, 246-47 (W.D.N.Y. 1980)	Supports the principle that failure to identify a substitute party in suggestion of death does not start the substitution period.	Used to reinforce the court's interpretation consistent with federal authority.
Yonofsky v. Wernick, 362 F. Supp. 1005, 1011-12 (S.D.N.Y. 1973)	Similar to Rende, holds that substitution period is not triggered without proper identification of substitute party.	Further federal support for the court’s ruling.
Farmers Insurance Gr. v. District Court of Sec. J.D., 507 P.2d 865, 867-68 (Colo. 1973), cert. denied, 414 U.S. 878 (1973)	Rejects Rende rationale; holds that notice of death requires inquiry to identify substitute party.	Recognized by the court as a contrasting approach rejected here.
Mullis v. Bone, 238 S.E.2d 748, 750 (Ga.Ct.App. 1977)	Allows 180 days to substitute party and permits extensions, rejecting Rende approach.	Noted as a differing state rule illustrating alternative procedural timelines.
New Hampshire Ins. Co. v. Kimbrell, 343 So.2d 107, 109 (Fla.Dist.Ct.App. 1977)	Rejects Rende but provides other relief mechanisms for failure to comply with substitution rules.	Referenced as an alternative state approach to the substitution issue.

Court's Reasoning and Analysis

The court analyzed whether the statutory 90-day period to move for substitution under sec. 803.10(1)(a), Stats., begins to run upon the filing of a suggestion of death that does not identify a proper substitute party. The court determined that the suggestion of death filed by Waterman's attorney was insufficient because it failed to name a substitute party. Drawing on the nearly identical federal Rule 25(a)(1) and federal precedent, particularly Rende v. Kay, the court held that the 90-day period is not triggered unless a proper substitute party is identified. The court reasoned that triggering the period without such identification would unfairly burden the plaintiff to locate the substitute within 90 days, which could lead to absurd results, such as Wick having to appoint himself as special administrator of the very estate he was suing. The court noted that some state courts have rejected this rationale but found the federal approach persuasive and appropriate for Wisconsin’s procedural rule.

Holding and Implications

The judgment dismissing the complaint was reversed.

The court held that a suggestion of death that does not identify a proper substitute party does not trigger the 90-day period to move for substitution under sec. 803.10(1)(a), Stats. Consequently, the trial court erred in dismissing the complaint for failure to substitute within the time limit. The direct effect is that the case may proceed without dismissal on this procedural ground. The opinion does not establish new precedent beyond clarifying the application of the substitution rule in these circumstances.

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Wilbert WICK, Personal Representati v. of the Estate of Henry Wick, deceased, Plaintiff-Appellant,

GARTZKE, P.J.

Wilbert Wick is the personal representative of the estate of Henry Wick. He appeals from a judgment dismissing his complaint against Dale Waterman. Waterman died during the litigation. The trial court dismissed the complaint because Wilbert Wick failed to serve notice of substitution for Waterman within 90 days of the suggestion of his death on the record. Sec. 803.10(1)(a), Stats.

The dispositive issue is whether under sec. 803.10(1)(a), Stats., a suggestion of death of a party which fails to identify a proper substitute party triggers the running of the 90-day period to move to substitute. We hold that the suggestion of death is insufficient and therefore does not trigger the 90-day period. For that reason, we conclude that the trial court should not have dismissed the complaint, and we reverse.

The complaint alleges that Wilbert Wick succeeded to Dale Waterman as personal representative of the Estate of Henry Wick and that Waterman wrongfully acquired estate assets. After the action was commenced, Waterman died. Waterman's attorney of record, in his own name, mailed a formal "Suggestion of Death of One of the Parties Defendant" to the trial court and to Wilbert Wick. The "suggestion" states the place and date of Waterman's death and his residence but does not identify a person who could be substituted for Waterman.

Ninety days later, even though he had not yet been appointed, Wilbert Wick moved to substitute himself as special administrator of Waterman's estate. It is undisputed that no other person had been appointed or had petitioned to appoint a personal representative of Waterman's estate. Wick petitioned to appoint himself and was later appointed special administrator. The trial court dismissed Wick's complaint because he had not been appointed until after the 90-day period provided in sec. 803.10(1)(a), Stats., had run.

The construction and application of a statute to the established facts is a question of law. Mogilka v. Jeka, 131 Wis.2d 459, 471, 389 N.W.2d 359, 364 (Ct. App. 1986). We owe no deference to the trial court's views on a question of law. Rivera v. Safford, 126 Wis.2d 462, 465, 377 N.W.2d 187, 188 (Ct.App. 1985).

In Wheeler v. General Tire Rubber Co., 142 Wis.2d 798, 807, 419 N.W.2d 331, 334 (Ct.App. 1987), we noted that sec. 803.10(1)(a), Stats., is almost identical to and is based on Rule 25(a)(1) of the Federal Rules of Civil Procedure. Federal precedents may have value when we construe a Wisconsin procedural rule based on a federal rule. Id. We therefore looked to federal cases for guidance in construing sec. 803.10(1)(a). We again do so.

Relying on the history of the federal rule, Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969), held that a suggestion of death which failed to identify a proper party to substitute for a deceased defendant did not trigger the running of the 90-day period. Accord, Al-Jundi v. Rockefeller, 88 F.R.D. 244, 246-47 (W.D.N Y 1980); Yonofsky v. Wernick, 362 F. Supp. 1005, 1011-12 (S.D.N.Y. 1973). We agree with the Rende court that a contrary construction "would open the door to a tactical maneuver to place upon the plaintiff the burden of locating the representative of the estate within 90 days." 415 F.2d at 986. Here that same burden led to the absurd result of Wick having himself appointed as the representative of the estate of the very person he had sued, no other person having been appointed or having sought the appointment.

Three state courts have rejected the Rende rationale: Farmers Insurance Gr. v. District Court of Sec. J.D., 507 P.2d 865, 867-68 (Colo. 1973), cert. denied, 414 U.S. 878 (1973) (party who receives notice of death must inquire to determine identity of person to be substituted); Mullis v. Bone, 238 S.E.2d 748, 750 (Ga.Ct.App. 1977) (Georgia rule allows 180 days, twice as long as the federal rule, to substitute and may be extended); New Hampshire Ins. Co. v. Kimbrell, 343 So.2d 107, 109 (Fla.Dist.Ct.App. 1977) (to follow Rende would engraft exception to state rule but other relief from failure to comply available).

By the Court. — Judgment reversed.