01-2621 Schwister v. Schoenecker (58346)

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“To trigger the 90-day time period in the present case the 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….

“[W]e conclude that in the present case the suggestion of death served only on the deceased plaintiff’s attorney, when no personal representative had been appointed, was not sufficient to trigger the 90-day period under Wis. Stat. § 803.10(1)(a).

“First, serving the suggestion of death on Attorney Pyzyk alone did not necessarily alert persons who may have a right or interest in deciding whether a motion for substitution should be filed of the need to protect their interests or the interests of the decedent….

“Second, the burden on the defendant, the serving party, to identify and serve appropriate persons with the suggestion of death was minimal in this case. …

On the facts of this case, it is not an unreasonable burden on the defendant to require that he serve the suggestion of death on his brothers, two individuals with readily identifiable interests in the deceased plaintiff’s estate. …

“Third, to declare that service of the suggestion of death triggered the 90-day period in the present case would not further the goal of fair and expeditious resolution of the case.”

Order affirmed.

Waukesha Cty. Cir. Ct.; Foster, J.; Abrahamson, Ch. J.

Attorneys:

For Appellant: David W. Neeb, Daniel J. Borowski, Milwaukee

For Respondent: Robert G. Pyzyk, James J. Carrig, Menomonee Falls