Flejter v. Estate of Flejter Ex Rel. Migacz

FINE, J.

¶ 53. (dissenting). In my view, the statutes here are clear and the estate's objection to the claim was not timely. Accordingly, I respectfully dissent.

¶ 54. Wisconsin Stat. § 859.33(1) requires that any objection to a claim filed against an estate "shall be served upon or mailed to the claimant and filed with the court within 60 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate." (Emphasis added.) Here, the lawyer for Patricia A. Flejter mailed her claim against the estate to the estate's attorney on November 12,1997. The sixty-day period thus ran on January 11, 1998, which because that date is a Sunday, January 12, 1998. See WlS. Stat. § 801.15(l)(b) ("Notwithstanding ...[§] 990.001(4), in computing any period of time prescribed or allowed ... by any . . . statute governing actions and special proceedings, . . . the day of the act . . . from which the designated period of time begins to *427run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed."); Wis. Stat. §§ 990.001(4)(a) (first day excluded from calculation); 990.001(4)(b) (if Sunday is the last day, it is excluded from calculation). The estate's objection to the claim was not served until January 14,1998. It was two days late.

¶ 55. The majority concludes that WlS. STAT. § 801.15(5)(a) makes the estate's objection timely. Section 801.15(5)(a) provides that where a party must do something "within a prescribed period after the service of a notice or other paper upon the party," "3 days shall be added to the prescribed period" "[i]f the notice or paper is served by mail." The problem with the majority's rationale, as I see it, is that — unlike the other time-computation statutes to which § 801.05(15)(a) applies — -WlS. Stat. § 859.33(1) covers specifically the time within which an objection to a claim must be filed when the claim is mailed. Thus, in my view, it is improper to apply the more general provision in § 801.15(5)(a). See Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 22, 353 N.W.2d 812, 817 (Ct. App. 1984) (" 'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.'") (Quoting 2A SUTHERLAND, STATUTORY Construction § 51.05 (4th ed. 1973)).

¶ 56. The following analysis applies here:

• Wisconsin Stat. § 801.15(5)(a) is the general statute — it applies to "all civil actions and special proceedings . . . except where different *428procedure is prescribed by statute or rule." See WlS. STAT. § 801.01(2) (emphasis added).
• Wisconsin Stat. § 859.33(1) is the specific statute — it applies to the timely filing of objections to claims against estates.
• Section 859.33(1) requires that an objection to a claim against an estate shall be served and filed "within 60 days after the copy of the claim was mailed to or served upon" the estate. (Emphasis added.) Section 805.15(5)(a) gives an extra three days when document to which a response must be made is mailed to the party.
• Section 859.33(1) thus conflicts with § 805.15(5)(a) because application of the latter provision to the former modifies the former to require that any objection to a claim filed against an estate "shall be served upon or mailed to the claimant and filed with the court within 60 63 days after the copy of the claim was mailed to or served upon the personal representative or the attorney for the estate."

Accordingly, under the universal rule recognized Maxey, the sixty-day period set out in § 859.33(1) governs; it is also the "different procedure" envisioned by § 801.01(2) as trumping § 801.15(5)(a). The estate's objection was untimely. I would reverse.