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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 24, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0656
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE ESTATE OF
LILLIAN DALLMAN:
ESTATE OF LILLIAN
DALLMAN,
Appellant,
v.
THEODORE PYKE, JR.,
Respondent.
APPEAL from an order of
the circuit court for Marathon County:
JOHN G. BARTHOLOMEW, Reserve Judge.
Reversed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. The estate of Lillian Dallman appeals an
order invalidating a deed from Dallman to her son, Kenneth F. Dallman, and
requiring the estate to execute a deed to the same property to Theodore Pyke,
Jr. The estate argues that the failure
to properly join Kenneth Dallman individually as a person interested in the
action was fatal to the claim. We agree
and reverse the order.
The facts are not
disputed. The land at issue is a small
portion of five acres owned by Theodore Pyke, Sr., whose children are Lillian
Dallman, Lorraine Seeley, Donald Pyke, Dolores Lewis, and Theodore Pyke, Jr. The land passed to the children as tenants in
common when Theodore Pyke, Sr., died in 1960, and was subject to widow Anna J.
Pyke's homestead rights.
In October 1975, Donald
Pyke commenced a partition action against Anna J. Pyke, Lillian Dallman,
Lorraine Seeley, and Theodore Pyke, Jr.[1] In October 1976, the lawsuit settled. In exchange for a $12,000 payment to each of
them, Lillian Dallman, Lorraine Seeley, Donald Pyke, and Dolores Lewis conveyed
the five acres to Theodore Pyke, Jr., on October 22, 1976.
Also in the October 22
settlement, Theodore Pyke, Jr., conveyed to Lillian Dallman and Lawrence, her
husband, the .252 acres of land located in the northwest corner of the
five-acre parcel, which they used as their homestead. Lillian and Lawrence Dallman gave Theodore Pyke, Jr., a right of
first refusal to the property.[2]
At issue in this lawsuit
is the parcel of .252 acres located in the northwest corner of the land. After the death of Lawrence Dallman, Kenneth
F. Dallman, son of Lillian Dallman, received the .252 acres in a quitclaim deed
from his mother, in which she reserved a life estate.
After the death of
Lillian Dallman, Theodore Pyke, Jr., filed with the Probate Branch of the
Marathon County Circuit Court a claim against the estate for specific
performance of the right of first refusal.
The estate filed an objection to the claim. Kenneth F. Dallman was named and given notice of the probate
proceedings as the personal representative of the estate, but not as an
individual.
At the conclusion of a
hearing on Pyke's claim, the probate court entered an order concluding that it
had personal jurisdiction over Kenneth F. Dallman as an individual, and that
the deed from Lillian Dallman to Kenneth F. Dallman was invalid because it
breached the right of first refusal given to Theodore Pyke, Jr. The court ordered the execution of a deed
for the same property from the estate to Theodore Pyke, Jr.
The estate now appeals
this order, raising the following two issues:
whether the trial court erred when it decided that it had personal
jurisdiction over Kenneth F. Dallman in his individual capacity, and when it
interpreted the deed's right of first refusal provision. Because the resolution of the first issue is
dispositive of this appeal, we need not consider the merits of the second
issue.
Personal jurisdiction is
a question of law, which we review de novo.
Marsh v. Farm Bureau Mut. Ins. Co., 179 Wis.2d 42, 52, 505
N.W.2d 162, 165 (Ct. App. 1993). The
interpretation of probate statutes is also a question of law, which we review
without deference to the trial court. See
Estate of O'Neill, 186 Wis.2d 229, 233, 519 N.W.2d 750, 752 (Ct.
App. 1994).
Probate is a series of
special proceedings. Estate of
Goldstein, 91 Wis.2d 803, 810, 284 N.W.2d 88, 92 (1979). The rules and procedures for special
proceedings as they appear in chs. 801 to 847, Stats., apply in the absence of other statutorily-prescribed
procedures. O'Neill, 186
Wis.2d at 233, 519 N.W.2d at 752.
However, probate is governed by the specific procedures contained in ch.
879, Stats. Id.
All persons interested
in a probate dispute must be named in the petition to the probate court. Section 879.01, Stats. According to
the statute:
All applications to courts, except motions
in matters at issue, shall be made by verified petition. All petitions must show the jurisdiction of
the court and the interest of the petitioner.
All petitions ... shall also show the names and post-office addresses of
all persons interested, so far as known to the petitioner or ascertainable by
him or her with reasonable diligence ....
Id. All persons interested in
probate proceedings must receive formal notice. Section 879.03(2), Stats. Notice may be achieved by mail, personal
service or publication. Section 879.05,
Stats. The notice requirement may be satisfied by waiver of notice or by
appearance. Sections 879.09, 879.11, Stats.
The failure to give
formal notice to all persons interested in a probate dispute defeats the trial
court's personal jurisdiction over those individuals. See Estate of Phillips, 92 Wis.2d 354, 362,
284 N.W.2d 908, 913 (1979). As stated
by our supreme court,
The law in Wisconsin holds that where the
respondent fails to give legal notice to the proper parties in interest ... all
orders and judgments entered in the previous probate proceedings would be void
as the failure to give legal notice would result in a defect of jurisdiction
rendering the proceeding ineffective as to those parties in interest to whom no
notice was given.
Id.
Kenneth F. Dallman, as
title owner to the disputed land, was a person interested in this claim against
the estate of Lillian Dallman. See
§ 851.21(1)(d) and (e), Stats. Here, Theodore Pyke, Jr., was attempting to
invalidate the quitclaim deed transferring Lillian Dallman's interest in the
disputed land to Kenneth F. Dallman.
The trial court's only reference to its personal jurisdiction over
Kenneth F. Dallman was contained in its written decision of October 15, 1995:
The
Court's jurisdiction over Kenneth Dallman, both as personal representative of
the estate of Lillian Dallman and as an individual, is based on the fact that
there is controversy as to the title of real estate involved and determination
of that controversy is incidental to and necessary for the complete
administration of the estate.
Although Theodore Pyke,
Jr., gave Kenneth F. Dallman notice to the proceedings as the personal
representative of the estate, he failed to give notice to Kenneth F. Dallman as
an individual. The record shows no waiver
of notice. The unsuccessful efforts of
Theodore Pyke, Jr., to have Kenneth Dallman stipulate to personal jurisdiction
indicate that he was aware that Dallman was a person interested in the probate
proceedings. The lack of notice
violated the statute and, because Kenneth F. Dallman was not properly made a
necessary party to the proceedings, the order is set aside.
We recognize that one
may view this reversal as hypertechnical in that Kenneth Dallman was present in
these proceedings in his capacity as personal representative for the
estate. However, the effect of these
proceedings was to set aside Kenneth Dallman's title to this property, thereby
making him an interested and necessary party.
Without proper jurisdiction over Dallman, the court lacks authority to
set aside the deed.
Without the proper
joinder of all interested parties, it is premature for this court to decide the
merits of the interpretation of the right of first refusal. Because Kenneth F. Dallman was not properly
named and given notice as an individual, the court's order is reversed.
By the Court.—Order
reversed.
Not recommended for
publication in the official reports.