Petition for Writ of Certiorari — Norton v. Bridges

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IN THE al a+

Supreme Court of the United States

OCTOBER TERM, 1988

HELEN PAGE NORTON, individually and as trustee for the

use and benefit of Dale Page Norton and John Jay Norton,

and DALE PAGE NORTON and JOHN JAY NORTON, on

their own behalf,

Petitioners,

Vv.

RUSTE DURNELL BRIDGES, Deceased, for whose estate

no administrator has been appointed, formerly a disabled

person under the law of Illinois and Successor Trustee of

the John L. Page Trust, who, pending the appointment of

an administrator, is being treated as in being for all pur-

poses that are necessary for the protection of others, and

PATRICK T. MURPHY, individually and as Public Guardian

of the County of Cook, State of Illinois, as Guardian of her

Estate,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE WISCONSIN

COURT OF APPEALS, DISTRICT IV

HUGH M. MATCHETT

5834 S. Stony Island Avenue

Chicago, IL 60637

(312) 643-0318

Attorney for Petitioners

rr ¢ DECENTT

| ‘ ‘

Jhether under the decisicn cf the United

+ >t C t oO fF Ay > is + t | 1c ~AaOa > ~ Nr LOT,

Lat Wit Ol Dpea o in Hao Gest iti MOD LOR

v Bridges, 719 F.2d 1156, 1166 (7th Cir 1983),

ordering the Circuit Court of Jefferson County

t ee

ctr

)

oint a successor trustee, 2s

its first essumption of jurisdiction over the

trust and its assets, which it failed to do,

1 which would have entitled it to adjudicate

the entire controversy, and under the unpub-

{

lished order of the Wisconsin Court of Appeals

n this case affirming an order cf said circuit

sing this suit for a purported want

court dismi

{

of prosecution, the State of Wisconsin has de-

privea petitioners of their procedural rights

and property without due process of law, and

has denied them the protection and equal pro-

tection of the laws, in violation of their

federal rights under the 14th Amendment 9 1.

Whether under the decision of this Court

1 Link v. Wabash Railroad Co., 370 US 626,

9-630, 5632-3, (1962), and the decision of the

ipreme Court of Wisconsin in Neylan v. Vor-

ld, 124 Wis 2d 85, 90, 368 NW2d 648, 651-52

1985), and the decision of the Wisconsin Court

Appeals in Rupert v. Home Mutual Ins. Co.,

38 Wis 2d 1, 405 NW2d 661 (Wis App 1987), the

>cision of the Wisconsin Court of Appeals in

yis case in the unpublished opinion below,

1e latter decision is a void judgment for want

f any standard to justify a dismissal for want

f prosecution, and a deprivation of petition-

rs procedural rights and property without due

rocess of law, and a denial to them of the

rotection and equal protection of the laws, in

iolation of the 14th Amendment § 1, to the

onstitution of the United States.

ill

III

Whether the trial judge, who entered the

judgment dismissing the suit for a purported

want of prosecution, had any discretion to do

so, when under the Wisconsin statutes the case

was deemed ready for trial because more than

one year had passed after the summons and com-

plaint were filed, and he was under a duty to

call the case for a pretrial conference and set

the case for trial because more than 60 days

had passed since the one year had expired,

without depriving petitioners of their proced-

ural rights and property without due process of

law, and denying them the protection and equal

protection of the laws, in violation of their

federal rights under the 14th Amendment § 1,

under the rule that a judge who is himself res-

ponsible for the delay or otherwise remiss in

the performance of his own duty, cannot dismiss

a suit for want of prosecution.

Whether the circuit court is under a duty

rO appcint a successor trustee of the John L.

-age Trust and an administrator for the estate

of the deceased successor trustee under the

trust agreement and the decision of the United

States Court of Appeals in this case and the

Jisconsin statutes and its in rem and guasi in

rem jurisdiction over the assets of the trust

estate and its jurisdiction over the person and

the estate of the deceased and the person and

estate of the public guardian to enforce their

duty to account and to enforce their personal

liability for their failure to do so.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

QUESTION I 1

QUESTION II il

QUESTION Ifl |

QUESTION IV iv

TABLE OF CONTENTS V

TABLE OF AUTHORITIES vii

OPENING STATEMEN 1

OPINIONS BELOW 2

JURISDICTION 3

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT 10

CONCLUSION

APPENDIX

The Decision of the Wi

Court of Appeals, Four

sconsin

District, Of April 24th, 1986

The Order Of The Supreme Court

Of Wisconsin Denying Petition

For Review of December

The Judgment of the Circuit Court

of Jefferson County, W

of December 16th, 1985

6th, 1988

isconsin,

Motion To Vacate The Judgment

of December 16th, 1985

on January 2nd, 1986

, filed

Motion To Vacate The Judgment

of December 146th, 1985

on April 28th, 1986

The Order of the Circu

Of Jefferson County, W

denying the motions to

, filed

it Court

isconsin,

vacate

the Judgment of December 16th,

1985, of June 20th, 1986.

Page

The Decision Of The United States

Court Of Appeals for the Seventh

Circuit of July 19th, 23792

vil

TABLE OF AUTHORITIES

Cases

Batesville Institute v Kauffman,

85 US 151, 154 (18/1)

Breze v Schmitz, 305 Minn 537, 538

233 NW2d 559 (1975)

Copeland v Bragg, (Minn App),

378 NW2d 35, 39 (1985)

Crown Inter. City of Elkhart, (Ind

App), 430 NW2d 921 (1982)

Will of Hill, 261 Wis 290, 298 (1951)

Link v Wabash Railroad Co.,

370 US 626, 6029, 632 (1962)

Maxwell v U of M, 159 Mich App 417,

ZO7 NW2d 16 (1987) ;

McWilliams v Gough, 116 Wis 5/76,

583 (1906)

Mikos v Sarasota Cattle Co.,

453 So2d 402 (Fla 1984)

Neylan v Vorwald, 124 Wis 2d 85, 90

368 Nw2d 648, 651 (Wis 1985)

Vill

Norton v Bridges, 712 F2d 1156,

1166 (7th Cir 1983

Norton v Bridges (Wis App 1988

Nyberg v Cambridge State Bank,

245 Minn 112, 23 NW2d 345, 347-8

(1955)

Rupert v Home Mutual Ins. Co.

138 Wis 2d 1, 405 NW2d 661

(Wis App 1987)

Constitution of the United States

Fourteenth Amendment 8 1

Federal Statutes:

za US Code §& 12757(3)

é",

ie)

NDS

1 ot

NR RR

ONW re OF ~) OV

> PPP Yr

Page

Wisconsin Statutes

6 702.2742) 24

§ 802.09(1) 56

§ 802.10(2) 18

§ 804.12(2)(a) 17

S 803.03 14

Textbooks

George Gieason Bogert, Bogert Trusts

3rd Ed. HB, West Publishing Co.,

1952 Page 110 a

Sir Edward Coke, First Part of the

Institutes of the Laws of England,

Eighteenth Edition, Corrected, 1823,

by Charles Butler, Special Edition,

Library, Volume II, 290.b. VI rs

Thomas M. Cooley, Treatise On Con-

stitutional Limitations, Boston:

Little, Brown, and Company, 1868,

Legal Classics Library, Page 410 24

Benjamin N. Cardozo, The Nature of

the Judicial Process, 109-110

(1922), Cardozo On The Law,

The Legal Classics Library

Ecclesiastical Sources

Holy Bible, Matthew 7:1-5

St. Thomas Aquinas, Treatise On

Justice From Summa Theologica

Second Part of Second Part,

Questions 57-122, Q. 60 Art. 2,

Pages 1447-8

St. Paul, reference to,

Herman Melville, Moby Dick,

The Modern Library Giant Edition

1944, Page 68

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

HELEN PAGE NORTON, individually and as trustee for the

use and benefit of Dale Page Norton and John Jay Norton,

and DALE PAGE NORTON and JOHN JAY NORTON, on

their own behaif,

Petitioners,

RUSTE DURNELL BRIDGES, Deceased, for whose estate

no administrator has been appointed, formerly a disabled

person under the law of Illinois and Successor Trustee of

the John L. Page Trust, who, pending the appointment of

an administrator, is being treated as in being for all pur-

poses that are necessary for the protection of others, and

PATRICK T. MURPHY, individually and as Public Guardian

of the County of Cook, State of Illinois, as Guardian of her

Estate,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE WISCONSIN

COURT OF APPEALS, DISTRICT IV

—

PETTTION FOR A WRIT OF CERTIORARI

Helen Page Norton and Dale Page Norton and

John Jay Norton, by their attorney Hugh M.

Matchett, petition for a writ of certiorari to

the Wisconsin Court of Appeals, Fourth Dis-

trict, to review a decision dated and released

and filed on August 4th, 1988, which became

final on December 6th, 1988, on denial of a

petition for review by the Supreme Court of

Wisconsin, affirming an order of dismissal for

a purported want of prosecution dated December

16th, 1985, and from The Findings of Fact,

Conclusions of Law, and Order of Dismissal da-

ted June 20th, 1986, of the Circuit Court of

Jefferson County, Wisconsin, finding that pe-

titioners had failed in their burden of proof

that the case had been diligently prosecuted,

and also dismissing the suit for their purpor-

ted failure to comply with the statutes gov-

erning procedure in civil matters, and declar-

silices

ing that the dismissal operates as a adjudica-

tion on the merits and with prejudice.

The suit itself is a petition to appoint a

Successor Trustee of the John L. Page Trust in

lieu of Ruste Durnell Bridges, a disabled per-

son under the law of Illinois, now deceased,

with directions to reduce the assets of the

trust now in the possession of Patrick T. Mur-

phy, as Public Guardian of the County of Cook,

State of Illinois, to the trustee's posses-

sion, and to administer and terminate the

trust under the direction and control of the

Circuit Court of Jefferson County, Wisconsin,

and to require the Public Guardian to account,

and to make restitution, with interest, and to

pay reasonable attorney's fees.

OPINIONS BELOW

The opinions are not published. The opin-

ion of the Wisconsin Court of Appeals is prin-

a ee

ted in the Appendix, commencing at Page A-1.

The circuit court judgments of December 16th,

1985, and June 20th, 1986, are printed in the

Appendix, respectively, commencing at pages

ii ana 20.

JURISDICTION

The jurisdiction of this Court is invoked

under 28 U<S< Code § 1257(3).

STATEMENT OF THE CASE

At all times during the period December

28th, 1983, to and including December 16th,

1985, the date the suit was dismissed for a

purported want of prosecution, to and includ-

ing June 20th, 1986, when the dismissal became

final, the circuit court was under a duty to

appoint a successor trustee to represent the

trust or to protect the assets of the trust

itself, and violated its fiduciary duty in

failing to do so.

a a

At all times after November 28th, 1984,

and the suit had been on file in the Cireust

court for over a year, disregarding the time

the case had been in the Federal courts, -i+

was deemed ready for trial by statute, and the

trial judge was under a duty to call a pre-

trial conference, and set the case for trial,

and to try it on the merits, which it failed

to do.

We start with the closing lines of the de-

cision of the United States Court of Appeals

in this case in Norton v Bridges, 712 F.2d

1156, 1166, (Appendix A-27, at page A-45-6),

where the court said:

"In the present case, the Jeffer-

son County, Wisconsin court is not

only accorded a power of appointment

but will forthwith be required to ex-

ercise it. . . . The exercise of the

power to appoint a successor trustee

of the Page trust will constitute the

first assumption of jurisdiction in

this case and will entitle the Wis-

consin state court to adjudicate the

entire controversy, thereby exclud-

ing the federal district court from

any role in the controversy.

"CONCLUSION

"The Jefferson County, Wiscon-

Sin court may assert exclusive Juris

diction over the entire claim urged

by Norton. The varying relief Norton

seeks suggests that the court having

power over the trust, to which the

assets are subject, is the appropri- ’

ate forum in which to litigate this

dispute. Such an assertion of juris-

diction is consistent with the re-

quirements of both due gael and

Wisconsin Statutory law. Further, the

consolidation of all proceedings re-

Sarding the trust in one court is

consistent with the policy favoring

resolution of all trust-related ques

tions in,;one forum. The order of the

district court dismissing Norton's

claim seeking a reduction of trust

assets, an accounting, and termina-

tion of the trust is revers ed. The

case is remanded to the district

court with instructions to remand the

entire matter to the circuit court of

Jefferson County, Wisconsin."

We shift our statement of the case to the

decision of the Wisconsin Court of Appeals

sought to be reviewed (Appendix A-1).

scullliets

The Court of Appeals (A-2) states:

"The dispositive issue is whether

the trial court abused its discretion

by dismissing the action. Because Lt

did not, we affirm."

its conclusion (A-8) it states:

"Norton also claims that the man-

date from Norton v. Bridges, 7l2 F.ed

1156 (7th Cir 1983), required the

Jefferson county circuit court to ap-

point a successor trustee. Whatever

legal effect such mandate may have

had we conclude that it could not

protect Norten from a dismissal for

her lack of prosecution. The fact

that Norton did nothing to prosecute

her case from April 2nd, 1984 to De-

cember 16, 1985 provides a basis for

the court's discretionary decision.

Therefore we sustain it. (3.. We do

not determine whether the circuit

court has a continuing duty under

Bee. TOL ITC) y otets.4. 60 appotnr

a successor trustee.)"

its opinion (A-6) it states:

_—

Norton alleges that it was the

trial court's duty to set the case

for trial. However, in Wisconsin,

/t/he obligation to bring his case

to trial within a resonable time

lites with the piaintiff,'*

footnote (A-7) it states:

nid

"ttn probably the most signif-

jeant changes from current practice,

the new rules -most especially sec-

tion 802.10.— place the responsibil-

ity for moving the case on the court,

4s well as on the attorneys.' Clau-

sen and Lowe, The New Wisconsin Rules

of Civil Procedure: Chapters 801-803,

59 Marq. L. R. 1, 68 (1976). The

plaintiff now shares the burden of

bringing a case to trial."

T+ QRYTAaAD ++ ce sae

&- atwov states .

"Norton relies on Neylan v.Vor-

wald, 124 Wis.2d 85, 368 N.W.2d 646

(1985), for the proposition that a

trial court may not dimiss a case

for lack of prosecution without

first giving notice. However, Nor-

ton was given twenty days' notice

to show good cause for not dismis-

sing her case before the order be-

[t ignored petitioners' argument in their

brief, page 36, that: "When a court assumes

the duty of setting a date for trial the suit

cannot be dismissed for want of prosecution.

na? } co = - cr Ne ‘ f j yy T

. « « Mikos v. Sarasota Cattle Co., 1984, Fla.

i\ f ) } We BL

1s ees ’ A hoa 2 ater ny 4 \ £ ie?

{4 a wks os ck BAe > is and aiso ate page 4f e

It has also ignored petitioners’ first

amendment to their petition filed on April

2nd, 1984, where the first part of the title

of the case was changed to read: "Helen Page

Norton, individually and as trustee for the

use and benefit of Dale Page Norton and John

Jay Norton, and Dale Page Norton and John Jay

Norton,.on their own behalf, Petitioners.",

by disregarding her status as trustee, and

her children's right, as adult beneficaries,

to petition on their own behalf

ft has also ignored the basic constitu-

tional issues that were raised by petitioners

in their motion to vacate the Order of Decem-

ber 16th, 1985, which said:

"Under the circumstances as they

understand the situation, the Order

of December 16th, 1965, is a depri-

vation of procedural right and remedy

| } 1} A} AP PRaAaae +? } , a + —3 WK le ,

WIiLTNOUT CHUL t AG Sees Ol WIS GOS ati LAW y

and a denial to them of the protec-

tion and equal protection of that

law, in violation of their rights

under the Constitution of the State

of Wisconsin and their federal

rights under the 14th Amendment,

Section 1, to the Constitution of

The United States, and under 42 USC

Section 1983."

and their argument at page 10 of their brief

on appeal that the Orders of December 16th,

1985, and June 20th, 1986, are void orders,

depriving petitioners of their property with-

out due process of law, and denying them the

protection and equal protection of the laws,

in violation of the Constitution of the State

of Wisconsin, and the 14th Amendment, Section

1, to the Constitution of the United States.

The circuit court and the Wisconsin Court

of Appeals have completely ignored the decis-

ion of the United States Court of Appeals,

especially the federal constitutional issues

decided by it that are the law of this case

unless reversed by this Court.

—10—

REASONS FOR GRANTING THE WRIT

In Link v Wabash Railroad Co., 3/0 U.S

626, at pages 629-633, this Court said;

The authority of a federal trial

court to dismiss a plaintiff's action

with prejudice because of his failure

to prosecute cannot seriously be

doubted. The power to invoke this

sanction is necessary in order to

prevent undue delays in the disposit-

ion of pending cases and to avoid

congestion in the calendars of the

District Courts. The power is of an¢

cient origin, having its roots in

judgments of non-suit and non prose-

quitur entered at common law, €.2%.,

Rlackstone, Commentaries (1768),

295-296, and dismissals for want of

prosecution of bills in equity, e.2.,

id., at 451, Tt has been expressly

recognized in Federal Rule of Civil

Procedure 41(b) . . . . The authority

of a court to dismiss sua sponte for

lack of prosecution has generally

been considered an ‘inherent power, '

governed not by rule or statute but

by the contro] necessarily vested in

courts to manage their own affairs so

as to achieve the orderly and exped-

itious disposition of cases. . .

Nor does the absence of notice as

to the possibility of dismissal or

the failure to hold an adversary

hearing necessarily render such a

ae | oe

dismissal void. It is true, of course,

that "the fundamental requirement of

due process is an opportunity to be

heard upon such notice and proceedings

as are adequate to safeguard the ekant

for which the constitutional protec-

tion is invoked." Anderson v. Luckett,

321 U'S. 233, 246. But this does not

mean that every order entered without

notice and a preliminary adversary

hearing offends due process. The ade-

quacy of notice and hearing Seba enhtt ie

proceedings that may affect a party'

rights turns, to a considerable ex-

tent, on the knowledge which the cir-

cumstances show such a party may be

taken to have of the consequences of

his own conduct. The circumstances

here were such as to dispense with the

necessity for advance notice and hear-

ing.

; . . Petitioner never sought to

avail himself of the escape hatch pro-

vided by Rule 60(b).

Accordingly, when circumstances

make such action appropriate, a Dis-

trict Court may dismiss a complaint

for failure to prosecute even without

affording notice of its intention to

do so or providing an adversary hear-

ing before acting. Whether such an or-

der can stand on appeal depends not

on power but on whether it was within

the permissible range of the court's

discretion.

For our purpose holds, and there is a felt

need, that this Court grant certiorari, and

use this case to build a federal standard on

your decision in the Link case, as a matter

of due process of law, and of the protection

and equal protection of the laws, under the

14th Amen?tment, Section 1, to the Constitution

of the United States, by recognizing an inher-

ent limitation on the inherent power of a

court to dismiss a suit for want of prosecu-

tion, by holding that a court has no discret-

ion to dismiss a suit for want of prosecution

when the court itself is remiss in.its duty to

appoint a trustee, or to obey the mandate of

a superior court, or to set the case for a

pretrial conference, or to call the case for a

pretrial conference, or to set the case for

trial, or to call the case for trial, or to

try the case on the merits, or to give advance

warning that the suit will be dismissed for

want of prosecution unless that situation is

immediately corrected or by a given date, or

without exhausting all reasonable alternatives

to dismissing the suit for a purported want of

prosecution.

For it is absolutely necessary that in ex-

ercising the awful power of dismissing a suit

for want of prosecution, and deciding the case

in favor of the adverse party without regard

to the merits of the case, a court must be ac-

ting with the cold neutrality of a stern im-

partial judge, and not from personal prejudice

against the petitioner or in favor of his op-

ponent, or simply an urge to get rid of the

litigation without passing on the merits of

case because of some conflict of interest that

is not immediately apparent, such as his inab-

ility to understand the case or to cover his

own dereliction of duty.

otic

This brings us to the consideration of the

Wisconsin statute and the decisions of the Su-

preme Court of Wisconsin and the Wisconsin

Court of Appeals on the subject.

Sec. 805.03, Wis. Stats., provides in ma-

terial part:

"For failure of any claimant to

prosecute or for failure of any party

to comply with the statutes governing

procedure in civil actions or to obey

any order of court, the court in which

the action is pending may make such

orders in regard to the failure as are

just, including but not limited to or-

ders authorized under s. 804(2)(a).

Any dismissal under this section oper-

ates as an adjudication on the merits

unless the court in its order for dis-

missal otherwise specifies for good

cause shown recited in the order.

In Neylan v Vorwald, 124 Wis 2d 85, 94,

(Sup. Ct. 1985), 368 NW2d 648, the Court said:

"The present rule governing this

case is sec. 805.03, Stats., which

was adopted by supreme court order,

67 Wis. 2d 690, as part of the Wis-

consin Rules of Civil Procedure. The

Wisconsin rules were prepared by the

=<)

judicial council and were patterned

after the Federal Rules of Civil

Procedure."

At page 92, it states:

"The present rule, sec. 805.03,

does not state any time limit within

which trial must proceed after com-

mencement of the action and therefore

does not import any constructive know-

ledge to litigants or their counsel of

the outside time limits a court will

consider as being a ‘failure to prose-

cute,’ nor does it provide that actual

notice be given. Where no constructive

notice is given, fundamental fairness

and due process require a litigant be

given actual notice before a court en-

ters a dismissal without notice and

motion of any party. Otherwise, what a

judge feels to be a failure to prose-

cute a case will depend on the indi-

vidual judge's thinking, the court's

calendar, and the rate of case intake

and disposition. Section 805.03 alone

imports no knowledge in advance to

litigants of what is expected in pros-

ecuting a case in a particular trial

court to avoid dismissal consequences

under the provisions of sec. 804.12(2)

(a) and particularly sec. 804.12(2) (a)

At page 94, the court said:

"Section 805.03, Stats., with ref-

erence to sec. 804.12(2)(a), forewarns

of a dismissal penalty for failure to

to prosecute an action, there is no

constructive notice of what must be

obeyed to avoid a dismissal."

At page 95 it states:

"We find the dismissals ordered by

the trial court without actual notice

before entry precluded the opportun-

ity to be heard. Therefore, they were

lacking in that fundamental requisite

of due process. The court of appeals

has held that: ‘Judgments entered con-

trary to due process are void.

We accept that holding and find that

where no advance actual notice of dis-

missal which contains a clear standard

or definition of what constituted 'the

failure to prosecute,’ due process is

lacking and the dismissal judgments

are thereby void."

The instant case is governed by the Neylan -

case because the Nortons had no basis, either

in statutory or case law, to anticipate the

trial court's definition of "failure to prose-

cute."

In Rupert v Home Mut. Ins. Co., 138 Wis

2d 1, 405 NW2d 661 (Wis.App. 1987), the Court

of Appeals reversed and remanded an order dis-

missing a suit for want of Prosecution. At

Id. 9-10, 405 NW2d at 664, it said:

"While sec. 805.03 fails to define

the outside limits of ‘failure to pros-

ecute,' the statute governing calendar

practice provides a basis for the trial

court to create these limits. Section

802.10(2), Stats., provides:

Unless excepted under sub. (1),

all actions and special proceedings are

deemed ready for trial one year after

the summons and complaint are filed.

Within 60 days after the expiration of

one year, the court shall by order set

dates for a pretrial conference and for

trial. [i&mphasis added. }

"By setting pretrial conferences and

trial dates, the court defines diligent

prosecution of an action. After one

year has passed, a plaintiff may rea-

sonably assume that the court will set

those dates within sixty days. It is

unreasonable that a plaintiff, antici-

pating receiving pretrial conference

and trial dates, should instead receive

a notice of intent to dismiss. Here,

rather than setting the required dates,

and thus vroviding the plaintiff with

an outside limit of conduct expected

for diligently pursuing its action, the

trial court moved to dismiss the one-

year-old suit.

iia

os a 302. 10(2) is silent

as to the effect of ‘deeming' an ac-

tion ready for trial. We read sub. (2)

merely to place a duty on the trial

court to set dates, within a specified

period, for the pretrial conference

and trial. 'Deeming' an action ready

for trial simply gives voice to a leg-

islative presumption that after one

year an action should have progressed

to the point where the court can in-

telligently exercise its duty to set

the required dates. Here, the record

shows no attempt to set the required

dates, nor does the record show that

Rupert would have been unprepared for

a pretrial conference or trial. We

cannot agree that a statute governing

trial court calendar practice imputes to

the trial court the power to impose the se-

vere penalty of dismissal only one

year after an action's commencement.

"Moreover, sec. 802.10(2) is si-

lent as to any consequences if an ac-

tion is not ready for trial within

one year. In contrast, sec. 802.10(3)

(d), governing scheduling conferen-

ces, specifically makes violation of

scheduling orders subject to venal-

ties under sec. 805.03, Stats. We

find significant the absence of a

s-milar provision in sub. (2).

"We must view a statutory action

in its entirety. [Citation omitted. ]

Where a comprehensive statute spe-

cificically grants a power in one

section and is silent with respect to

a ae

that power in another, we must assume

a legislative intent to exclude the

exercise of power under the latter

section. [Citation omitted.] The leg-

islature's silence in sub. (2) re-

veals an intent to exclude sec. 805.

03 venalties from sec. 802.10(2). Sec-

tion 802.10(2), 'deeming' an action

ready for trial one year from filing,

does not satisfy the fair and ade-

quate warning required by due process.

"We are not suggesting that a liti-

gant may sit idly by for the first

year of a lawsuit awaiting pretrial

conferences and trial dates. Rather,

we hold that before imposing a sanc-

tion as drastic as dismissal, advan-

ced notice is required. The federal

rule empowering trial courts to dis-

miss for failure to prosecute has been

construed to require the court to ex-

plore less drastic aiternatives prior

to dismissal. See 24 Am. Jur.2d Dis-

missal sec. 49 (1983). Several alter-

atives are available to the trial

court to accomplish the goal of dili-

gent prosecution of claims. For exam-

ple, sec. 802.10(3) permits the court

to call a scheduling conference with-

in ninety days of an action's com-

mencement. Further, even absent a pre-

liminary conference, courts are able

to advise each litigant at the time a

lawsuit is filed of any local rules

and penalties."

The key line in the Rupert case is the

- oo

line reading: "By setting pretrial conferences

and trial dates, the court defines diligent

prosecution of an action." The trial judge in

the instant case never defined it, unless it

can be said that he defined it by his conduct

in doing nothing between April 2nd, 1984, and

December 16th, 1985, when he dismissed the

suit for want of prosecution, when it was his

duty to appoint a successor trustee, and call

a pretrial conference, and set the case for

trial. Under the judge's own standard there

was no want of diligent prosecution of the ac-

tion, only lack of a diligent performance of

duty by the judge.

The decision of the Wisconsin Court of Ap-

peals in the Rupert case, and the decision of

the Supreme Court of Wisconsin in the Neylan

case, are based upon the decision of this

Court in the Link case, and assuming that each

decision is correctly decided, the judgment of

the Wisconsin Court of Appeals and the judg-

ments of the circuit court appealed to it in

this case are void judgments beyond the per-

missible range of the court's discretion be-

cause the Wisconsin statutes and cases do not

contain a clear standard of what constitutes

failure to prosecute, and no advance actual

notice of dismssal which contained a clear

standard of what constitutes failure to pros-

ecute was given, and the trial judge failea

to define diligent prosecution because he

failed to appoint a successor trustee, and to

set the case for a pretrial conference after

the case had been on file for over a year and

was deemed ready for trial, and to set it for

trial, with the result that due process is

lacking.

So also is the protection and equal pro-

tection of the law.

The late George Gleason Bogert, in his

Handbook of the Law of Trusts, Third Edition,

Hornbook Series, West Publishing Co., 1952,

Page 110, stated our position precisely, when

he wrote:

"Equity has as a part of its

inherent jurisdiction the power and

the duty to see that trusts are

protected and carried Out, and the

filling of the office of trustee is

a part of this function."

This position is confirmed by Sir Edward

Coke, in his First Part of the Institutes of

the Laws of England, Fighteenth Edition, Cor-

rected, 1823, by Charles Butler, Special Ed-

brary, Volume Il, 290.b VI, where it States:

"In a court of equity it is suf-

ficient that the trust appears and

if the party creating the trust has

not appointed his own Frustee, the

court of equity will follow the

legal estate, and decree the person

in whom it is vested to execute the

trust. See ant. 113, note 2, it be-

ing a rule which admits of no excep-

tion that a court of equity never

wants a trustee,"

In Batesville Institute v Kauffman. 85 US

151, 154 (1871), this Court said:

"That this court has power to

appoint a new trustee, and to compel

the performance of the trust by him,

is quite certain. It is, however,

equally within the power of a court

of equity to decree and enforce the

execution of the trust through its

own officers and agents, without the

intervention of a4 new trustee,

(Story, Equity Jurisprudence, §§

976, 1060, 1061.)"

In McWilliams v Gough, 116 Wis 576, 583,

(1906), the court said:

"A trust never fails for want of

a trustee. While the office becomes

vacant the trust continues, its exe-

cution only being interrupted. Ju-

dicial power, under the equity jur-

isdiction, will fill the office in

form or effect, and compel and su-

pervise the execution of the trust

where there is no Statute to provide

for the emergency,"

In Will of Hill, 261 Wis 290, 298 (1951),

the Supreme Court of Wisconsin said:

"Tf the Foundation is in fact

unqualified to be a trustee and de-

clines to qualify, it is a general

rule that a trust never fails for

want of a trustee and the court, in

its equity powers, may appoint one

or may execute the trust by its own

officers."

§ 701.17(2) Wisc. Stats., provides:

"Tf it appears necessary, the

court may appoint a special trustee

until a successor trustee can be

appointed or, where a trust has ter-

minated, to distribute the assets. A

special trustee may be appointed

without notice and may be removed

whenever the court so orders. Such

special trustee shall give such bond

as the court requires and shall have

the powers conferred by the order of

appointment and set forth in any

letters of trust issued him."

It necessarily follows that at all times

during the period December 28th, 1983, to and

including December 16th, 1985, the trial judge

had the inherent power and the duty to appoint

a successor trustee and failed to do so.

In Maxwell v U of M, 159 Mich App 41/7,

(1987), 407 NW2d 16, MCR 2.502, provided for

dismissal for lack of progress, but also pro-

vided that an action could not be dismissed

if it was set for trial, or scheduled for a

pretrial conference, or before a date speci-

fied for completion of discovery. MCR 2.501(A)

(1), concerning scheduling trials, provided:

"Following the time of completion

of discovery as determined under MCR

2.301, the court shall schedule a

pretrial conference under rule 23a01.

schedule the action for mediation un-

der MCR 2.403, or schedule the action

for trial. [Emphasis added. ]”

Martin, Dean & Webster, Michigan Court Rules

Practice, Rule 2.502, Author's Comment, p ll,

states in relevant part:

"At the conclusion of,the time set

for discovery, the court’ must set

the action for pretrial or trial.

Thus all actions in which an answer

has been filed are precluded from the

operation of MCR 2.502 until trial or

other disposition of the action is

completed."

In their footnote, the commentators said:

"In circuits which have approved

local court rules requiring that one

of the parties file a demand for

trial, etc. before trial or pretrial

is scheduled, those cases in which

no such demand is filed within one

year from the close of discovery are

also subject to dismissal under the

provisions of Rule 2.502. The authors

would note, however, that the indi-

vidual circuit must have passed a lo~

cal court rule altering the provis-

ions of MCR 2.502. If it has not, but

simply possesses an informal proced-

ure calling for such filings, the

authors question how the court may

dismiss an action when the basis of

dismissal is the court's own non-

compliance with MCR 2.501, i.e., if

the court had complied with MCR 2.501

and independently set the case for

trial, the case would not be subject

to dismissal under MCR 2.502."

In that case the plaintiff appealed from

an order dismissing with prejudice for no

progress his wrongful discharge suit pursuant

had not complied with MCR 2.501. The Court of

MCR 2.502, in spite of the fact the court

Appeals at Page 422 (407 NW2d 19) said:

"W/hile the Ingham Circuit Court

(Thirtieth Judicial Circuit) Local

Rules may have formerly required a

party to file a demand for a pre-

trial and trial before a case will

be put on the docket calendar, the

current Local Court Rules which be-

came effective on March 1, 1985,

with the new Michigan Court Rules

contain no such provision. See Michi-

gan Rules of Court 1986 (West Publish-

ing Co.), pp. 755-760. Thus, as the

commentators suggest, absent such a

local court rule, the trial court may

not dismiss this case because the

basis for dismissal is the court's

own noncompliance with the MCR 2.501

provision that the court itself must

set the case for trial."

The case is similar to the case at bar

because there is no statutory requirement in

Wisconsin that a case be noticed for trial,

and after a case has been on file for more

than a year, it is the duty of the court it-

self, within 60 days thereafter, to call a

pretrial conference and set the case for

trials

me”

In Crown Inter. v City of Elkhart, Ind

App, 430 NW2d 921 (1982), the court held that

a remonstrance in annexation proceedings was

in the nature of a defense, and such action

was not properly subject to dismissal for

lack of prosecution, but the statute involved

provided that:

"W/hen the remonstrance is deter-

mined to be sufficient the court sua

sponte shall set a hearing date which

should be not more than sixty (60)

days thereafter." (922.7;

and said:

"Tn addition the result [of dis-

missal] cannot be rationalized as a

matter of necessary docket control by

the trial judge. The annexation stat-

ute imposed upon the court the obli-

gation and the duty to order the case

for trial. It could have done so

rather than issue the rule to show

cause."

The statement is only common sense. When a

court is under a duty to call a case for trial

it cannot dismiss the suit for want of prose-

cution. This is the crux of our position.

In Mikos v_ Sarasota Cattle Co., 453 So2d

402 (Fla 1984), the Supreme Court of Florida

held that once the plaintiff has given notice

that it is ready for trial, the trial judge

must enter an order fixing a date for trial,

and, if he does not do so, is precluded from

dismissing the action for want of prosecution.

Both parties had noticed the case for trial

but the court had not set the case for trial.

The court said:

"Neither party took any further

action, nor did the court, until over

a year later on August 11, 1982, when

Mikos filed a motion to dismiss for

lack of prosecution pursuant to Flor-

ida Rule of Civil Procedure 1.440(b).

The district court reasoned that since

it is the trial court's responsibility

to enter an order fixing a date for

trial under Rule 1.440(c) once notice

of trial is given, the filing of the

notice bars the trial court from dis-

missing the action for lack of prose-

cution

"We agree with the decision below

in all respects. A trial judge has

sole discretion in determining the

order in which the cases will be

tried at particular times. The rules

—30—

contemplate that whenever a plaintiff

is ready for trial his attorney must

notify the court and ask the court to

enter an order setting a trial date.

It is inappropriate for a trial at-

torney to pressure a judge into set-

ting a date. We would like to add,

however, that if a plaintiff subse-

quently indicates that he is not ready

for trial, then the filing of the no-

tice of trial will not be a bar to a

dismissal for lack of prosecution."

The case is directly applicable to this

litigation. The judge was under a duty to call

the case for a pretrial conference and set the

case for trial, and dismissed the suit for want

of prosecution, and under the Florida case he

could not have done so.

In Nyberg v Cambridge State Bank, 245 Minn

312, 73 NW2d 345, 347-8 (1955), with one dis-

sent, the Supreme Court of Minnesota held that

once a case is noticed for trial it could sik

be dismissed with prejudice for want of prcose-

cution on the preliminary call of the calendar

because "'the case could not be so dismissed

a. om

until it is actually called for trial." In

Braze v Schmitz, 305 Minn 537, 538, 233 NW2d

559 (1975), the court refused to adopt any ex-

ception to that rule. But where the plaintiff

has not noticed his case for trial it could be

dismissed for want of prosecution. Copeland v

Bragg, (Minn App), 378 NW2d 35, 39 (1985). We

agree with these decisions. A case should not

be dismissed for want of prosecution until it

is actually calied for trial.

These cases all support our proposition

that a court should not be permitted to dis-

miss with prejudice a suit for a purported

want of prosecution at the very time the judge

is under a duty to call the case for a pre-

trial confererice and set the case for trial.

We have already established that equity has as

a part of its inherent jurisdiction the power

and the duty to see that trusts are protected

and carried out, and that the filing of the

office of trustee is part of that function,

but it is equally within the power of a court

of equity to decree and enforce the execution

of a trust through its own officers and agents.

It is evident that the circuit court judge

in dismissing this suit with prejudice for a

purported want of prosecution during the same

period he had failed to perform his duty to

appoint a successor trustee or to enforce the

trust through his own officers and agents, and

during the last part of which period he had

failed in his duty to call the case for a pre-

trial conference and set it for trial and try

it, without offering any justification or ex-

cuse for his own inactivity, violated his own

duty in doing so, with the result the judgment

of dismissal is a void judgment. It certainly

is hypocritical.

The following quotations from ecclesias-

tical sources support our position:

"Judge not, that ye be not judged.

For with what judgment ye judge, ye

shall be judged: and with what measure

ye mete, it shall be measured to you

again. And why beholdest thou the mote

that is in thy brother's eye, but con-

siderest not the beam that is in thine

own eye? Or how wilt thou. say to thy

brother, Let me pull out the mote of

thine eye; and, behold, a beam in

thine own eye? Thou hypocrite, first

cast out the beam of thine own eye;

and then shalt thou see clearly to

cast the mote out of they brother's

eye." Holy Bible, Matthew 7:1-5.

"Those who stand guilty of griev-

ous sins should not judge those who

are guilty of the same or lesser sins

, A/ man condemns himself so as to

deserve to be condemned once again,

when, in condemning another, he

shows himself to he equally deserving

of condemnation on account of another

or a like sin." St. Thomas Aquinas,

Treatise On Justice From Summa Theo-

logica, Second Part of Second Part,

Questions 5/7-122, Q. 60, Art. 2, Page

1447-8.

"Yea, woe to him who, as the great

Pilot Paul has it, while preaching to

others is himself a castaway!" Herman

Melville, Moby Dick, The Modern Li-

brary Giant Edition 1944, Page 68.

a ee

Judge Benjamin N. Cardozo, in his Nature

of the Judicial Process, 109-110 (1922) said:

"Some relations in life impose a

duty to act in accordance with the

customary morality and nothing more.

. « « Other relations in Lite, as,

e.g., those of trustee and benefici-

ary, or principal and surety, impose

a duty to act in accordance with the

highest standards which a man of the

most delicate conscience and the

nicest sense of honor might impose

upon himself. In such cases, to en-

force adherence to those standards

becomes the duty of the judge."

The higher standard is undoubtedly the stan-

dard applicable to a judge in relation to the

lawyers and clients appearing before him in

the discharge of his judicial duties, and the

standard that was applicable in relation to

them in dismissing this suit for a purported

want of prosecution, and to the Wisconsin

Court of Appeals in reviewing this case. It is

obvious that the circuit court judge failed to

measure up to that standard when he failed to

appoint a successor trustee or to enforce the

trust by his own officers and agents, and that

he failed to measure up to that standard when

he failed to call the case for a pretrial con-

ference and set it for trial and try it.

It may reasonably be inferred from that

conduct that the judge had a personal bias or

prejudice either against petitioners and their

attorney_or in favor of the respondents.

It may be reasonably inferred from those

facts and inferences of fact that the circuit

court judge failed to measure up to the duty

imposed upon him to act in accordance with the

highest standards which a man of the most del-

icate conscience and the nicest sense of honor

might impose upon himself when he dismissed

the suit for a purported want of prosecution

when he had not performed his own duty in the

premises.

It may be reasonably inferred under the

circumstances that the circuit court judge dis-

missed this suit for a purported want

prosecution because he was seeking to justify

himself from any responsibility for the delay,

in violation of the fundamental principle:

"No one ought to be a judge in his

own cause; . . . This maxim applies

to all cases where judicial functions

are to be exercised, and excludes all

who are interested, however remotely,

from taking part in their exercises.

It is not left to the discretion of a

judge, or to his sense of decency, to

decide whether he shall act or not;

all his powers are subject to this

absolute limitation; and when his own

rights are in question, he has no au-

thority to determine the cause."

Thomas M. Cooley, Treatise On Constitutional

Limitations Which Rest Upon The Legislative

Power Of The States Of The American Union,

Boston: Little, Brown, And Company, 1868,

Classics Library, Pages 410-411. This rule

should not be limited to financial interests.

«aft.

It is evident that the trial judge did

not understand the nature of the litigation,

nor the fact that he had jurisdiction over the

trust funds in Illinois, or the fact that in

dismissing the suit for a purported want of

litigation with prejudice, if the judgment is

a valid judgment, he had foreclosed any later

litigation in Illinois, when he said:

"It would seem to me that despite

the lack of prosecution, we have oth-

er reasons to continue this matter in

Illinois, the res is in Illinois, the

subject of the controversy; Ruste

Bridges, the defendant, was a resi-

dent of | Illinois and her estate,

if any, should have to be probated

there, and it would seem to me that

this is a matter for the probate court

in Cook County, Illinois, whatever the

efficacy and correctness of this

Court's decision to dismiss the case

on notice, and I'm going to deny your

motion [to vacate the judgment of dis-

missal for want of prosecution].

"All right, Mr. Matchett has asked

about the decision of the United

States District Court [rather the de-

cision of the United States Court of

Appeals For The Seventh Circuit] with

the death of Ruste Bridges, any reason

whatever for continuing this [matter]

in the Wisconsin Jefferson County

Court died with her, and this has no

bearing, the Court has ruled."(Docu-

ment 42(2), Page 8 Lines 8-22.)

Her death could have no effect on the juris-

diction of the circuit court over the trust

assets in Illinois under the decision of the

United States Court of Appeals in this case.

There was no violation of the rules. In

any event, the findings in regard to the pur-

ported violations were not put in issue by the

Judgment of December 16th, 1985, and are void

by reason of that fact.

In Rupert v Home Mut. Ins. Co., 138 Wis2d

1, at pages 9-10, and 405 NW2d at page 664,

quoted at page 17 of this petition, the court

said:

"By setting pretrial conferences

and trial dates, the court defines

diligent prosecution of the action.

After one year has passed, a plain-

tiff may reasonably assume that the

—39—

court will set those dates within six-

ty days."

The trial court never set a trial date. Mea-

sured by that rule, petitioners were never

guilty of want of prosecution because the

court never defined the term.

Petitioners, in moving to vacate the Judg-

ment of December 16th, 1985, moved the court

to set the case down for trial at an early

date convenient to the court on or subsequent

to February ist, 1986. (Doc. 23). The motion

should have been allowed.

CONCLUSION

Our conclusion is that the petitioners

have been deprived of their procedural rights

and property by the State of Wisconsin without

due process of of law, and have been denied

the protection and equal protection of the

laws by the State of Wisconsin, in violation

—_4()—

of their federal rights under the Fourteenth

Amendment § 1, creating a great opportunity in

this Court to grant certiorari and establish a

precedent bringing federal law up to date in

regard to dismissal of suits for a purported

want of prosecution with prejudice by recog-

nizing that there are situations in which

judges have no real discretion or standing to

dismiss a suit in that manner, as where they

have failed to perform their own duties to the

the plaintiffs, or are biased or prejudiced

against them or in favor of their opponents.

Respectfully sumitted,

Dey Lh fULS 9

HUGH M. MATCHETT

APPENDIX

A-1

COURT OF APPEALS DECISION DATED AND RELEASED

AUG 04 1988 FILED AUG 4 1988 CLERK OF COURT

OF APPEALS OF WISCONSIN No. 86-1690 STATE OF

WISCONSIN IN COURT OF APPEALS DISTRICT IV

HELEN PAGE NORTON, individually and as trus-

tee, for the use and benefit of Dale Page

Norton and John Jay Norton, and DALE PAGE

NORTON and JOHN JAY NORTON, on their own be-

half,

Petitioners-Appellants,

RUSTE DURNELL BRIDGES, deceased for whose

estate, no administrator has been appointed

formerly a disabled person under the law of

Illinois, and successor trustee of the JOHN

L. PAGE TRUST, who pending the appointment of

an administrator, is being treated as in be-

ing for all purposes that are necessary for

the protection of others, and, PATRICK T.

MURPHY, individually, and as public guardian

of the County of Cook, State of Illinois, as

guardian of her estate,

Respondents.

APPEAL from an order of the circuit court

for Jefferson county: JOHN B. DANFORTH, Judge.

Affirmed.

Before Dykman, J., Eich, J., and Sundby,

A-2

DYKMAN, J. Helen Norton appeals from an

order dismissing her complaint against the

estate of Ruste Bridges for lack of prosecu-

tion. The dispositive issue is whether the

trial court abused its discretion by dismiss-

ing the action. Because we conclude it did

not, we affirm.

FACTS

In 1944, John Page, Norton's father, es-

tablished a trust. He appointed George Brid-

ges trustee. During Page's iekeeines he was

the trust beneficiary. Norton became the ben-

ificiary after Page's death. The cee was

recorded with the register of deeds in Jef-

ferson County, Wisconsin. Bridges invested

the trust corpus in his home in Illinois.

When Bridges died in 1958, he willed his home

to his wife, Rustee Bridges. No successor

trustee was appointed. Norton filed no claim

against George Bridges’ estate. Ruste Bridges,

A-3

an Illinois resident, was declared incomptent

in 1980. She died in 1984.

In 1981, Norton filed a petition in Jef-

ferson county circuit court in which she

sought to be appointed successor trustee of

the trust. Norton also requested that Patrick

T. Murphy, the public guardian of Cook County,

Illinois, who controlled Ruste Bridges’ as-

sets, be ordered to turn over the trust as-

sets to Norton. On Murphy's motion, a federal

district court ordered the case removed to

federal court, but the seventh circuit revers-

ed and remanded, concluding that the Jefferson

county circuit court had exclusive jurisdic-

tion over the trust. Norton v. Bridges, 7/12

F.2d 1156,.-1166. (7th Cizc. 19863).

On January 31, 1984, the Jefferson county

circuit court appointed a guardian ad litem

for Ruste Bridges. The court held a telephone

A-4

telephone scheduling conference March 19, 19-

84. On April 2, 1984, Norton, without leave

of the court, amended her October 28, 1981

petition, adding Bridges’ guardian ad litem

as a party. Norton also filed a motion for

summary judgment without noticing that motion.

The action lay dormant until December 16, 19-

1985, when the court, on its own motion, is-

sued an order for dismissal because the case

had not been diligently prosecuted. The court

gave Norton twenty days to show good cause

why the order should not be entered.

Norton filed a motion to vacate the De-

cember 16, 1985 order alleging that "there has

been no want of prosecution in that on or

about April 1st, 1984, they filed a First

Amendment to their pending motion for summary

judgment, and that motion is still pending as

far as Hugh M. Matchett (Norton's attorney)

and his clients know." At the May 12, 1986

A-5

motion hearing the court found that Norton

had not shown good cause why the case should

not be dismissed for lack of prosecution. The

court referred to the procedural defects in

Norton's April 2, 1984 motions, but concluded

that Ween ity [that] is not the reason [for

dismissal|. The reason is that [the case]

went from 1984 until late 1985 without any-

thing happening." The court then ordered the

case dismissed for lack of prosecution pursu-

ent to sec. 605.03, Stats.!

STANDARD OF REVIEW

A motion to dismiss for want of

prosecution is addressed to the

sound discretion of the trial court,

and we will affirm the court's ac-

tion unless "it is clearly shown

that there was an abuse of discret-

ion." One seeking to set aside such

a dismissal must show a "clear and

Section 805.03, Stats., permits a trial

court to dismiss an action for a claimant's

failure to prosecute.

A-6

justifiable excuse’ for the delay."

While this has been recognized as a

“strict standard,” it is said to be

appropriate in light of the "'duty'

of trial courts ... ‘to refuse their

aid to those who negligently or abu-

sive fail to prosecute the actions

which they commence.'' Finally, we

note that because dismissal is a

harsh sanction, the remedy is appro-

priate "only in cases of egregious

conduct by a claimant."

We will not reverse a discret-

ionary determination by the trial

court if the record shows that dis-

cretion was in fact exercised and we

can perceive a reasonable basis for

the court's decision. The exercise

of discretion is not the equivalent

of unfettered decisionmaking, but

to be sustained "must demonstrably

be made and based upon the facts ap-

pearing in the record and in reli-

ance on the appropriate and applic-

able law." Generally, however, we

will look for reasons to sustain a

discretionary determination.

Prahl v. Brosamle, 142 Wis.2d 658, 666-67,

420 N.W.2d 372, 376 (Ct. App. 1987) (cita-

tions omitted).

Norton alleges that it was the trial

court's duty to set the case for trial. How-

A-7

ever, in Wisconsin, "[t]he obligation to

bring his case to trial within a reasonable

time lies with the plaintiff." Cukrowski Vv.

Mt. Sinai Hospital, 67 Wis.2d 487, 500, 227

N.W.2d 95, 102, cert. denied, 423 U.S. 914

(1975).? Norton relies on Neylan y. Vorwald,

124 Wis.2d 85, 368 N.W.2d 648 (1985), for

the proposition that a trial court may not

dismiss a case for lack of prosecution with-

out first giving notice. However, Norton was

given twenty days' notice to show good cause

for not dismissing her case before the order

became final.

Cukrowski must be read in conjunction

with the following: "In probably the most

Significant change from current practice, the

new rules -- most especially section 802.10.

-- place the responsibility for moving the

case on the court, as well as on the attor-

neys." Clausen and Lowe, The New Wisconsin

Rules of Civil Procedure: Chapters 801-803,

59 Marq. L. Rev. 1, 68 (1976). The plaintiff

now shares the burden of bring a case to

trial.

A-8

Norton also claims that the mandate from

Norton v. Bridges, 712 F.2d 1156 (7th Cir 19-

83), required the Jefferson county circuit

court to appoint a successor trustee. What-

ever legal effect such mandate may have had,

we conclude that it could not protect Norton

from dismissal for her lack of prosecution.

The fact that Norton did nothing to prose-

cute her case from April 2, 1984 to December

16, 1986 provides a basis for the court's

discretionary decision. Therefore we sustain

it.3 Prahl. 142 Wis.2d at 667, 420 N.W.2d

at 376.

By the Court. --Order affirmed.

Inclusion in the official reports is not

recommended.

We do not determine whether the circuit

court has a continuing duty under sec. 701.

17(1), Stats., to appoint a successor trustee.

A-9

Office Of The Clerk

SEAL S$ UP 2S Se Ce e285

STATE OF WISCONSIN

Madison, December 6, 1988

To: Hon. John B. Danforth

Circuit Court of Jefferson County

Jefferson County Courthouse

Jefferson, WI 53549

Albert H. Beaver

118 N. Lawton Pl,

Sturgeon Bay, WI 54235

Bradford W. Wilcox

Vance, Vance and Wilcox, S.C.

79 No. Main St.

Fort Atkinson, WI 53538

William F. Hue

Krek, Frederichs & Hue

323 S. Whitewater Ave., Box 399

Rebecca S. Kolleng

Office of Public Guardian

Richard J Daley Center

Chicago, IL 60602

The Court today announced an order in your

case as follows:

oS re ee

PT ahi

No. 86-1696 Norton v. Ruste Durnell Bridges

(deceased )

A petition for review pursuant to sec.

808.10, Stats., having been filed on behalf.

A-10

of petitioners-appellants-petitioners, Helen

Page Norton, individually and as trustee, for

the use and benefit of Dale Page Norton and

John Jay Norton, on their own behalf, and

considered by the court,

IT IS ORDERED that the petition is den-

ied without costs.

Hugh M. Matchett

5834 S. Stony Island Ave.

Chicago, IL 60637

MARILYN L. GRAVES

Clerk of the Supreme Court

Sc-105

STATE OF WISCONSIN CIRCUIT JEFFERSON COUNTY

COURT

HELEN PAGE NORTON

Plaintiff(s)

ORDER OF DISMISSAL

Case No. 81 CV 482

RUSTEE DURNELL BRIDGES

Defendants(s)

WHEREAS, the above captioned matter was

filed on. September 28, 1981; and

WHEREAS, it appears from the file herein

that:

[X] The above captioned matter has not

been diligently prosecuted:

NOW, THEREFORE, ON THE COURT'S OWN MOTION:

IT IS HEREBY ORDERED that the above cap-

tioned matter be and the same is hereby dis-

missed, without costs to either party; said

A-12

order shall become effective twenty days af-

ter rendition thereof unless prior to the ef-

fective date any party through counsel or per-

sonally shows good cause why such order should

not be entered. Pursuant to Section 895.03,

Statutes, a dismissal for lack of prosecution

is on the merits and with prejudice. * * *

IT IS FURTHER ORDERED that any issue as

to what constitutes good cause shall be re-

solved upon formal hearing, and that parties

wishing to be heard shall request a hearing in

writing prior to the effective date oF THIS

order.

Dated: 12/16/85 BY THE COURT:

PC: Richard C. Smith s/John B. Danforth

Hugh M. Matchett Circuit Judge

Rebecca S. Kolleng Jonn B. Danforth

Bradford W. Wilcox

A-13

[ HEADING OMITTED ]

PETITIONERS’ MOTION TO VACATE

THE ORDER OF DECEMBER 16TH,

1985, AND FOR LEAVE TO FILE A

SECOND AMENDMENT TO THEIR PE-

TITION, TO STAND AS AN AMEND-

MENT TO THEIR PENDING MOTION

FOR SUMMARY JUDGMENT, AND IF

THAT MOTION FOR SUMMARY JUDG-

MENT IS DENIED, FOR TRIAL AT

AN EARLY DATE CONVENIENT TO

THE COURT ON OR SUBSEQUENT TO

FEBRUARY 1ST, 1986.

CLERK OF THE CIRCUIT COURT

Jefferson County, Wisconsin

FinL& 2

JAN 2 1986

<= «= e = = = 6 CIR © «= Me

KENNETH M. SCHOPEN, Clerk

Now come the Petitioners HELEN PAGE NOR-

TON, individually and as Trustee for the use

and benefit of Dale Page Norton and John Jay

Norton, and DALE PAGE NORTON and JOHN JAY

NORTON, on their own behalf, by their attor-

neys HUGH M. MATCHETT of Chicago, Illinois, a

member of the Illinois bar, and RICHARD C.

SMITH of Jefferson, Wisconsin, a member of

the Wisconsin bar, and move the Court to va-

A-14

cate its Order of December 16th, 1985, dis-

missing this suit effective 20 days from that

date for a purported want of diligent prosecu-

tion, on the ground that there has been no

want of prosecution in that on or about April

1st, 1984, they filed a First Amendment to

their pending motion for summary judgment, and

that motion is still pending as far as HUGH

M. MATCHETT and his clients know. They fur-

ther move the Court for leave to file a Sec-

ond Amendment to their Petition, to also

stand as a amendment to their motion for sum-

mary judgment, a copy of which is attached to

this motion and incorporated herein by refer-

ence as though fully set forth, to bring this

litigation up to date, and, in the event that

motion for summary judgment so amended is den-

ied, they move the Court to set this case

down for trial at an early date convenient to

the Court on or subsequent to February ist,

1986. HELEN PAGE NORTON is presently on a

A-15

trip to Spain. HUGH M. MATCHETT talked to her

on the telephone yesterday, December 29th,

1985, and she advised him that she would re-

turn to the United States about the third

week in January, 1986, and would be available

for trial on and after that date. HUGH M.

MATCHETT has also talked to his client JOHN

JAY NORTON, a resident of Wisconsin, and he

will be available for trial on and after Feb-

uary 1st, 1986. Under the circumstances as

they understand the situation, the Order of

December 16th, 1985, is a deprivation of

procedural right and remedy without due pro-

cess of Wisconsin law, and a denial to them

of the protection and equal protection of that

law, in violation of their rights under the

Constitution of the State of Wisconsin and

their Federal rights under the 14th Amendment,

Section 1, to the Constitution of the United

States, and under 42 USC § 1983. A’hearing is

requested on this motion. [Signature omitted. ]

A-16

[HEADING OMITTED |

PETITIONERS MOTION TO VACATE

THE ORDER DISMISSING THIS SUIT

FOR A PURPORTED WANT OF PROSE-

CUTION BECAUSE IT IS A VOID OR-

DER SINCE RUSTEE DURNELL BRIDGES

WAS DEAD AT THE TIME THE ORDER

WAS ENTERED AND THERE WAS A WANT

OF NECESSARY PARTIES; FOR IMMED-

IATE APPOINTMENT OF A SUCCESSOR

TRUSTEE OF THE JOHN L. PAGE

TRUST; FOR SUBSTITUTION OF PAR-

TIES AND JOINDER OF ALL PERSONS

NEEDED FOR JUST AND COMPLETE AD-

JUDICATION; FOR PERMISSIVE JOIN-

DER OF OTHER PARTIES; FOR SUM-

MONS TO ISSUE FORTHWITH; FOR

SUMMARY JUDGMENT IN THEIR FAVOR

ON ALL TISSUES POSSIBLE; AND FOR

TRIAL ON ALL OTHER ISSUES AT AN

7 EARLY DATE.

CLERK OF THE CIRCUIT COURT

Jefferson County, Wisconsin

rt hb & oO

APR 28 1986

------- ee o'clock - - - -

KENNETH M. SCHOPEN, Clerk

Now come HELEN PAGE NORTON, etc, et al,

Petitioners, by their attorneys, HUGH M. MAT-

CHETT, a member of the bar of the Supreme

Court of Tllinois, and STEVEN LUCHSINGER, a

member of the bar of the Supreme Court of

Wisconsin, and move the Court t6 vacate the

A-17

Order dismissing this suit for a purported

want of prosecution because it is a void or-

der since RUSTEE DUENELL BRIDGES was dead at

the time the order was entered and there was

a want of necessary parties; for immediate

appointment of a successor trustee of the

JOHN L. PAGE TRUST; for substitution of par-

ties and joinder of persons needed for just

and complete adjudication; for permissive

joinder' of other parties; for summons to is-

isue forthwith; for Summary judgment in their

favor on all issues possible; and for’trial

on all other issues at an early date; and

more specifically prays the the Court:

1. Appoint HELEN PAGE NORTON Successor

Trustee of the JOHN L. PAGE TRUST.

2. Appoint BRADFORD W. WILCOX Administra-

tor of the Estate of RUSTE DURNELL BRIDGES,

Deceased, with orders to submit himself to

the jurisdiction of this Court in this case,

and for instructions to request the Circuit

A-18

Court of Cook County, Illinois, to appoint

somebody Administrator of the Estate of RUS-

TEE DURNELL BRIDGES, Deceased, in the State

Tllinois, summons to issue against him forth-

with.

3. Substitute BRADFORD W. WILCOX, Adminis-

trator of the Estate of RUSTEE DURNELL BRID-

GES, Deceased, as parties respondent in her

place and stead.

4. Order PATRICT T. MURPHY to identify

his surety bonding company on his bond, and

make PATRICT T. MURPHY, individually and as

Public Guardian of the County of Cook, State

of Illinois, and as Guardian of the Estate of

RUSTEE DURNELL BRIDGES, an incompetent per-

son, and said bonding company, additional

parties respondent in the above entitled

cause, summons to issue against them forth- _

with.

A-19

Respectfully submitted,

[NAMES AND

ADDRESSES AND |

TELEPHONE NUMBERS Lk F, /

OMITTED ] / | ad fi ) A kell

A-20

STATE OF WISCONSIN JEFFERSON COUNTY

CIRCUIT COURT

BRANCH _ I

HELEN PAGE NORTON, et al, FINDINGS OF FACT

Petitioners, CONCLUSIONS OF LAW

Vv. AND ORDER

RUSTEE DURNELL BRIDGES, et No. 81-CV-482

Respondents.

A hearing was held before the undersigned,

the Honorable John B. Danforth, in the Cir-

cuit Court, Branch I, Jefferson County, at

the Jefferson County Courthouse, on May id,

1986, at 9:00 a.m. The petitioners appeared

by their counsel, Steven Luchsinger and Hugh

M. Matchett. The respondent, Patrick I. Mur-

phy, appeared in person and by William F. Hue

and Rebecca S. Kolleng, his counsel. The

guardian ad litem, Bradford W. Wilcox, was

also in attendance.

Now, upon the record and file herein and

the argument of counsel, the undersigned makes

the following:

A-21

FINDINGS OF FACT

1. The petitioners have done nothing to

further the prosecution of this case since

the telephone scheduling conference on March

19, 1984.

2. The petitioners have failed to serve a

Notice of Motion or properly file a Motion

Summary Judgment on March 29, 1984, on any

party, or obtain a hearing date thereon. A

3. The petitioners amended their Petition

more than six months, in fact, more than 29

months, after the filing of the Summons and

Petition without leave of Court.

4. The petitioners amended their Petition

to include Bradford W. Wilcox as a named res-

pondent without leave of the Court and without

serving an authenticated copy of the Summons

and Petition upon Mr. Wilcox.

5. Petitioners improperly moved the Court

for leave to file a Second Amendment to the

Petition by failing to obtain a motion date

A-22

or file a Notice of Motion.

6. The petitioners filed a Summary Judg-

ment Motion without meeting any of the statu-

tory requirements set forth in s. 802.08(1),

(2), and (3), Stats.

7. The petitioners did not present any

reason or show good cause, pursuant to the

Court order of December 16, 1985, within the

20-day time period set forth therein, or any

time thereafter, including the hearing of May

12, 1986, addressing the issue of why this

Court should not dismiss this case for want

of prosecution.

8. The following allegations have been

made regarding the trust:

A. The trust at issue was made in Wiscon-

sin on September 8, 1944, with George Bridges

as trustee.

RB. The trust corpus was invested in George

Bridges’ home.

A-23

C. George Bridges' died on June 7, 1958,

a resident of Illinois.

D. George Bridges' estate was probated in

Cook County, Illinois, in 1958.

E. No successor tfustee was appointed af-

ter the death of George Bridges.

E. George Bridges willed his home to Rus-

tee Durnell Bridges.

9. No claim against the Estate of George

Bridges was filed on behalf of Helen Page Nor-

ton.

10. Respondent, Rustee Durnell Bridges,

died, an Illinois resident, in May 1984, after

being declared incompetent by the [Illinois

Court on June 16,

11. No probate action has yet been opened,

in the state of Illinois, the residence of

Rustee Durnell Bridges, and the state contain-

ine her estate.

+2---his -Court -kas -RO -}HEtSGiCELOR -oVver-

A-24

the -carpus -af -the -trust -which -exists ~in -the --

state -o£ -LLlineis-

CONCLUSIONS OF LAW

1. Petitioners’ failure to further the

prosecution of this case since March 19, 1984,

constitutes failure to prosecute and violates

s, 805.03, Stats.

2. The petitioners failed to comply with

the statutes governing procedure in civil ac-

tion, thus violating s. 805.03, Stats., by:

(a) Failing to serve notice of motion

with their Motion for Summary Judgment on

March 29, 1984, on any party, in violation of

s. 802.02(2)(a), Stats.

(b) Amending their petition without leave

of the Court.

Bradford W. Wilcox, as a named respondent,

without leave of the Court and without serv-

ing an authenticated copy of the Summons and

Petition upon Mr. Wilcox in violation Or &,

803.05(1), Stats.

A-25

(d) Filing a Second Amendment to the Pe-

tition without leave of Court and without

proper Notice of Motion, in violation of s.

802.09(1), Stats.

(e) Filing a Summary Judgment Motion

without meeting the requirements of s. 802.08

(1), (2) and (3), Stats.

3. The petitioners' failed to show cause

or present any reason why this action should

not be dismissed for want of prosecution, ei-

ther within the 20-day time period set forth

in the Court's Order of December 16, 1985, or

anytime thereafter, including the hearing held

May 12, 19863; and, therefore, petitioners have

in their burden of proof on this issue.

WHEREFORE, the Court orders:

1. This case is dismissed as a result of

the petitioners’ failure to prosecute.

2. This case is dismissed for failure of

petitioners to comply with the statutes gov-

erning procedures in civil actions in Wiscon-

A-26

Sin.

3. This dismissal operates as an adjudica-

tion on the merits and is with prejudice.

4, All parties shall be responsible for

their own costs and attorney's fees in adjudi-

cating this matter.

BY THE COURT:

s/ JOHN B. DANFORTH

Honorable John B. Danforth

Circuit Court Judge, Branch I

6-20-86

A-27

712 F.2d 1156 (1983)

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 82-1877

HELEN PAGE NORTON,

Plaintiff-A ppellant,

RUSTE DURNAL BRIDGES, a disabled person under the

law of Illinois, as Successor Trustee of the John L.

Page Trust, and PATRICK T. MURPHY, as Public

Guardian of the County of Cook, State of Illinois, as

Guardian of her Estate,

Defendants-A ppellees.

Appeal from the United States District Court

for the Western District of Wisconsin on Removal from

the Circuit Court of Jefferson County, Wisconsin.

No. 81 C 766—John C. Shabaz, Judge.

ARGUED APRIL 6, 1983—DECIDED JULY 15, 1983

Before PELL and ESCHBACH, Circuit Judges, and

JAMESON, Senior District Judge.*

PELL, Circuit Judge. Helen Page Norton, the plaintiff

below, appeals from the district court’s dismissal of that

portion of her claim seeking a reduction of trust assets

to her possession and an accounting and termination of

* William J. Jameson, Senior District Judge of the District

of Montana, sitting by designation.

A-28

the trust. The issue on appeal is whether a Wisconsin

court can assert jurisdiction over the defendants in this

action and, if it can, whether that jurisdiction precludes

removal to the federal district court.

I. FACTS

In 1944, John L. Page, the plaintiffs father, estz.b-

lished a revocable inter vivos trust for his own benefit

until his death, and thereafter far the benefit of his

daughter, Helen Page Norton (Page trust). George H.

Bridges was named trustee. The trust was record2d

with the register of deeds in Jefferson County, Wisccn-

sin. Bridges was an Illinois resident and the trust res

was transferred by him or to him in Illinois.!

The trust provided that the trustee should manage the

trust as he saw fit and pay to the beneficiary the income

of the trust and so much of the principal as he saw fit.

The trust document gave the trustee power to appoint in

writing a successor trustee. The trust instrument also

provided that, should the trustee fail to appoint a suc-

cessor, “the judge of the county court of Jefferson

County, Wisconsin, may at any time and upon a proper

showing appoint a succeeding trustee if none shall have

been nominated” and “said court may issue letters of

trust in such matter and take such further proceedings

thereon as may be requisite and proper at the time for

carrying out this trust.”

John Page died in the mid-1940’s. George Bridges

invested the trust res in a mortgage on his home in Oak

Park, Illinois, with interest payable at 4%. He made

payments of interest and principal to Helen Page Nor-

ton. When the trust res amounted to $10,000, Bridjes

agreed to Norton’s request that the trust res be left

1 The district judge found that the res was transferred to

Bridges, suggesting that Bridges did not receive the assets

from Page while physically present in Wisconsin. The appel-

lant disagrees. For purposes of this appeal, it is unnecessary

to resolve this factual question.

A-29

intact. He continued making interest payments to her

until 1956. In 1956, the beneficiary agreed to Bridges’

request that the interest should be allowed to accumu-

late.

Bridges died in 1958. His will named his wife, Ruste

Durnal Bridges, as executor and chief beneficiary. The

will contained the following statement pertinent to this

action:

In making this bequest to my wife, I recognize that

in the past I have received certain monies from or

in behalf of HELEN PAGE NORTON, and I expect

that my wife will repay to her for the use and

benefit of her children any balance I still owe at the

time of my death, together with interest at 4% per

annum.

The mortgaged home in Oak Park, Illinois, was left to

Ruste Bridges.

On June 16, 1980, Ruste Bridges was declared a dis-

abled person by an Illinois state court. Defendant Patrick

T. Murphy, public guardian of Cook County, Illinois,

was named her guardian and the guardian of her estate.

The Oak Park residence was part of Ruste Bridges’ es-

tate. Pursuant to an order of the Circuit Court of Cook

County, and allegedly with notice to Helen Page Norton,

Murphy sold the Oak Park property for $48,501.

Norton brought this action in the Circuit Court of Jef-

ferson County, Wisconsin. She sought appointment as

successor trustee, pursuant to the provision in the trust

instrument empowering that court to make such ap-

pointment. She also sought a court order requiring the

defendants to reduce the trust assets to her possession,

and permission to administer and terminate the trust.

The defendants removed the case to the Western Dis-

trict of Wisconsin, pursuant to 28 U.S.C. § 1441(a),

asserting that the amount in controversy was greater

than $10,000 and that diversity of citizenship was pres-

ent because Norton is a Missouri resident and the de-

fendants are Illinois residents.

A-30

Norton moved the district court to remand the case to

the Jefferson County Court. The defendants sought dis-

missal on a number of grounds or, in the alternative,

transfer of the case to the Northern District of Illinois

pursuant to 28 U.S.C. § 1404.

The district court dismissed the case insofar as it

sought to compel reduction of the trust assets. The court

reasoned that it lacked in rem jurisdiction over the

assets which were located in Illinois and that personal

jurisdiction over the defendants could not be asserted

under either the Wisconsin long-arm statute or the con-

stitutional requirements delineated in Jnternational Si.oe

Co. v. Washington, 326 U.S. 310 (1945). The district

judge found that the plaintiff's remedy lay in the courts

of Illinois, rejecting Norton’s assertion that the Wiscon-

sin circuit court has exclusive jurisdiction over the

action.

The district judge did find, however, that the Jeffer-

son County court appeared to have jurisdiction to ap-

point a successor trustee. That aspect of the case was

remanded to the Circuit Court of Jefferson County.

II. MERITS

Norton challenges the district court’s holding that a

court sitting in Wisconsin cannot assert jurisdiction over

that portion of her claim which seeks a reduction of

trust assets and an accounting and termination of the

trust. This court must determine whether such an exer-

cise of jurisdiction would comport with the United

States Constitution and Wisconsin statutory law. If a

Wisconsin court could exercise jurisdiction, we must

decide whether jurisdiction lies exclusively in the state

court or whether removal to the district court was

proper.? Before addressing first the constitutional and

2 If the Wisconsin state court lacks jurisdiction over the con-

troversy, the federal district court, sitting in diversity, sim-

ilarly lacks power to resolve the controversy. Lakeside Bridge

(Footnote continued on following page)

A-31

then the statutory issue, we touch briefly on the prelimi-

nary question whether Ruste Bridges was named suc-

cessor trustee pursuant to George Bridges’ will.

A. Status of Bridges as Successor Trustee

Although the defendants have not specifically argued

in their brief that Ruste Bridges lacks the status of suc-

cessor trustee, they make numerous references to that

characterization as being a dubious one. At oral argu-

ment, the defendants suggested that Bridges might be

no more than a constructive trustee and argued that, if

she were, the statute of limitations precludes any action

against her at this time.

The language in George Bridges’ will, pursuant to

which Ruste Bridges is allegedly a successor trustee,

lacks evidence of careful drafting that would make cer-

tain her appointment as successor trustee. So far as the

record before this court indicates, however, that pro-

vision of Bridges’ will is merely consistent with a rather

informal approach to complying with the duties of trust-

eeship. Further, the trust instrument required only

that such an appointment be in writing and, to that

extent, the will fulfills the requirement. We conclude

that, for purposes of resolving the jurisdictional issues

urged on appeal, Ruste Bridges must be considered a

duly appointed successor trustee.

B. Constitutional Requirements

In International Shoe Co. v. Washington, 326 U.S. 310

(1945), the Supreme Court held that a state could assert

persona! jurisdiction over a non-resident defendant only

2 continued

& Steel Co. v. Mountain State Construction Co., 597 F.2d 596,

598 (7th Cir. 1979), cert. denied, 445 U.S. 907 (198Q).

The defendants have not -cross-appealed on the question

whether jurisdiction to appoint a successor trustee lies in the

Jefferson County, Wisconsin circuit court. We therefore do

not discuss that aspect of the case further on appeal.

A-32

if that defendant had sufficient contacts with the forum

state. The court below found that Bridges lacked the

required minimum contacts with the state of Wisconsin,

citing Hanson v. Denckla, 357 U.S. 235 (1958), in sup-

port of its conclusion.

In Hanson, an inter vivos trust was created by a Penn-

sylvania settlor. The settlor named a Delaware trust

company as trustee. The trust res was placed with the

trustee in Delaware. The settlor then moved to Florida.

After her death in Florida, the settlor’s will was admit-

ted to probate there. An issue arose as to whether the

settlor had exercised a testamentary power of appoint-

ment over the corpus of the trust. The Florida-Supreme

Court held that Florida could exercise jurisdiction. over

the non-resident trustee and the non-resident beneficiar~

ies of the trust even though the trust assets were in Del- ~~

aware.

After Delaware refused to accord the Florida judg-

ment full faith and credit, the United States Supreme

Court reviewed the case. The Supreme Court held that

Florida lacked personal jurisdiction over the trustee,

stating:

We fail to find such [minimum] contacts in the

circumstances of this case. The defendant trust

company has no office in Florida, and transacts no

business there. None of the trust assets has ever

been held or administered in Florida, and the

record discloses no solicitation of business in that

State by either person or mail.

357 U.S. at 257. Hanson v. Denckla is, however, distin-

guishable from the present controversy. The trust at

issue in that case was neither created in Florida nor

registered in that state. There was no provision creating

a power of appointment over successor trustees in a

Florida court. Further, the trustee in Hanson was an

institution rather than an individual, which suggests

that the settlor intended administration of the trust to

occur in Delaware.’

Boone v. Wachovia Bank & Trust Co., 163 F.2d 809

(D.C. Cir. 1947), upon which Norton relies is similarly

not dispositive. In Boone, the appellant urged that a

North Carolina judgment removing him as testamen-

tary trustee was not entitled to full faith and credit. The

trust had been established under the decedent’s will

which had been admitted to probate in North Carolina.

That court had appointed Boone trustee. The North

Carolina court was exercising continuing jurisdiction

over the trust. Upon application of the beneficiaries, the

North Carolina court removed Boone as trustee.

Prior to the suit for removal, Boone had moved to the

District of Columbia. He had taken the trust assets with

him. Boone was not personally served in the removal

proceeding and he did not appear in North Carolina to

contest the removal action. On appeal before the Dis-

trict of Columbia court of appeals, Boone urged that the

North Carolina judgment was invalid because that court

lacked both power over the trust res and personal juris-

diction over him.

The District of Columbia court held the North Caro-

lina judgment enforceable because the North Carolina

court already had jurisdiction of the trust and the assets

were subject to it. The court held that constructive ser-

vice was sufficient because the proceeding was charac-

fterizable as quasi in rem rather than in personam.

Norton argues that the relief she seeks against Bridges

requires only quasi in rem jurisdiction rather than per-

sonal jurisdiction and therefore, under Boone, the Wis-

consin court can exercise jurisdiction over this contro-

versy. In considering the constitutional requirements for

jurisdiction, the distinction between personal and quasi

in rem jurisdiction is of little help. In Shaffer v. Hevtner,

* As discussed infra, the state in which an institutional! trus-

tee is domiciled is generally held to be the state in which the

trust is administered.

A-34

433 U.S. 186 (1977), the Supreme Court held that the

minimum contacts standard enunciated in Jnternational

Shoe must be satisfied for a judgment quasi in rem to

meet the requirements of due process. For constitutional

analysis, the relevance of Boone lies not in how the juris-

dictional basis is labeled but in whether minimum con-

tacts between the forum and the defendant were demon-

strated and, if they were, whether Boone supports a

finding that minimum contacts exist in the present case.

There can be little question that trustee Boone had

the requisite contacts with North Carolina to permit an

exercise of jurisdiction. The trust had been created pur-

suant to the decedent’s will which had been admitted to

probate in North Carolina. Boone had been appointed

trustee by the court.

Bridges is correct in her assertion that these facts,

and the continuing jurisdiction exercised by North

Carolina over the trust at issue in Boone, distinguish

that case from the present controversy. In this case, the

trust was not created pursuant to will. The settlor,

rather than a Wisconsin court, appointed the original

trustee who in turn appointed Ruste Bridges. The courts

of Wisconsin do not have continuing jurisdiction over

the trust because they have not yet taken any action

regarding it.

Nonetheless, Boone illustrates a principle pertinent to

resolution of this jurisdictional controversy. Numerous

courts have held that, “[iJn the case of an inter vivos

trust where the administration of the trust is fixed in a

particular state, the courts of that state will exercise

jurisdiction.” Restatement (Second) of Conflict of Laws

§ 267 reporter’s note (rev. ed. 1971). Further, it is rec-

ognized that if a trust is to be administered in a partic-

ular state, that state has jurisdiction to determine not

only the interests of the beneficiaries in the trust prop-

erties but also questions relating to the liability of the

trustee to the beneficiaries. Jd. § 267 comment d; see G.

Bogert, The Law of Trusts and Trustees § 292, at 409 (2d

ed. rev. 1977). These authorities suggest that the critical

difference between Hanson and Boone is neither the

A-35

actual physical location of the trust assets nor whether

the trust is inter vivos or testamentary but rather that

the Hanson trust was not administered in the state

claiming jurisdiction whereas the Boone trust was.

Absent an express statement in the trust instrument

that the trust is to be administered in a designated

state, courts will attempt to infer from the instrument

the settlor’s intent as to place of administration. Restate-

ment, supra, § 267 comment c; cf. id § 272 comment c

(choice of law to be applied in trust administration may

be evident, despite absence of express designation, from

the language of the trust instrument or other circum-

stances). One approach is to determine the forum most

closely connected with the administration of the trust. A.

Scott, The Law of Trusts § 568, at 3810-11 (3d ed. 1967).

For instance, in Cocke v. Duke University, 260 N.C. 1,

131 S.E.2d 909 (1963), the issue was whether North

Carolina could assert jurisdiction over the Duke Endow-

ment pursuant to which Duke University and several

other North Carolina institutions were benefitted. The

trust had been created in New Jersey, subject to New

Jersey law. A majority, but not all of the trustees were

North Carolina residents. North Carolina did not have

personal jurisdiction over all the possible beneficiaries.

Nonetheless, the assertion of jurisdiction by a North

Carolina court was upheld because it was the state most

closely connected with the administration of the trust.

When trust assets are held by an institutional trustee,

the state in which that institution is located is generally

considered the place of administration of the trust. See

A. Scott, supra, § 571, at 3823; Hanson v. Denckla, 357

U.S. 235 (1958). This principle is readily explained by

the fact that an institution is relatively likely to remain

domiciled in the same forum over the entire period of

the trust’s existence. By choosing such an institution as

trustee, the settlor has impliedly chosen a state of

administration.

When the named trustee is an individual, however, it

is less certain that his or her domicile at any particular

time reflects the intent of the settlor to fix that forum as

A-36

the place of administration. This follows from the greater

likelihood that an individual trustee will change his or

her domicile over the period of the trust’s existence. If

the trustee’s domicile determined the place of adminis-

tration, and if the trustee were a peripatetic one, the

place of administration—and therefore the law applica-

ble to the trust as well as the forum empowered to

assert jurisdiction over trust questions—would change

frequently. It is unlikely that a settlor would choose to

make a trust, which by its nature represents a long-

term plan of the settlor’s, subject to such uncertainty.

In this case, however, George Bridges was not only an

Illinois domiciliary at the time Page appointed him

trustee but he remained an Illinois resident until his

death. His wife, similarly, has been an Illinois domicil-

iary throughout the existence of the Page trust. The

question is whether anything in the trust instrument

indicates that the settlor intended Wisconsin—rather

than Illinois—to be the place of administration of the

trust.

The fact that the trust was created in Wisconsin by a

Wisconsin settlor is not, by itself, dispositive. See Cocke

v. Duke University, 260 N.C. 1, 181 S.E.2a 909 (1963).

The registration of the trust in Wisconsin is more signif-

icant. Although we are aware of no Wisconsin statute

addressing the significance of registering an inter vivos

trust in that state, the act of registration is some evi-

dence of the settlor’s intent that Wisconsin should play a

significant role in the administration of the trust.

The importance of the Wisconsin registration of the

Page trust, for purposes of assessing whether an asser-

tion of jurisdiction by Wisconsin would be constitu-

tional, is illustrated by the provisions of the Uniform

Probate Code.‘ The Code is framed so as to permit an

‘ Because Wisconsin has not enacted the Uniform Probate

Code, the Code is relevant only to the constitutional, rather

than the statutory, jurisdictional question raised by this

appeal.

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exercise of jurisdiction to the full extent permitted by

the Constitution. § 1-302. It applies to inter vivos as well

as testamentary trusts. § 1-301 and Art. VII, pt. I, gen-

eral comment. A trust must be registered at the princi-

pal place of administration, § 7-101, and a trustee who

either registers a trust or accepts the trusteeship of a

registered trust submits personally to the jurisdiction of

the court of the registration state, § 7-103. Importantly,

the draftsmen of the Code state: “Clearly the trustee can

be deemed to consent to jurisdiction by virtue of regis-

tration.” § 7-103. '

Bridges’ acceptance of the trusteeship of a trust that

the settlor had registered in Wisconsin could be deemed,

consistent with the Uniform Probate Code, an acknowl-

edgment that the trust was to be administered in Wis-

consin and consent to the jurisdiction of the Wisconsin

court. Because the constraints of due process are recog-

nized by the Code, this analogy suggests that an asser-

tion of jurisdiction by the Wisconsin court over the Page

trust would be constitutional.

Finally, it is significant that the Page trust explicitly

accorded the Jefferson County, Wisconsin circuit court

power of appointment over successor trustees and au-

thorized that court to take further action regarding the

trust. In discussing this aspect of Norton’s claim, the

judge below characterized the appointment of a succes-

sor trustee as an action requiring in rem jurisdiction.

The district court also found it significant that the set-

tlor expressly named the Wisconsin court as having

power to act in this capacity. In rem jurisdiction cannot

be premised on the presence of trust assets in the state,

however, because the assets are in Illinois. The only

basis of in rem jurisdiction, therefore, is the role played

by Wisconsin in the administration of the trust. The dis-

trict judge apparently reasoned that it was the express

intent of the settlor that Wisconsin be the state of

administration for purposes of exercising a power of

appointment and that the settlor’s intent was control-

ling. There is little basis, however, for declaring Wis-

consin the place of administration for purposes of only

this one function. As stated above, when a trust instru-

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ment is not explicit as to the intended place of adminis-

tration, one must scrutinize the trust instrument and

consider the impact of the trust in order to ascertain the

settlor’s intent. See Restatement, supra, § 267 comment

c; A. Scott, supra, § 568, at 3810-11; Cocke v. Duke Uni-

versity, 260 N.C. 1, 131 S.E.2d 909 (1963). Consistent

with these authorities, Page’s empowering the Wiscon-

sin court to appoint a successor trustee and to take re-

quired actions thereafter regarding the trust is an

indication of his intent that the trust should be adminis-

tered in Wisconsin.

The result is no different if we characterize the

inquiry as whether Wisconsin is the state most closely

connected with the administration of the trust. Bridges

being a resident of Illinois, investing the trust assets in

a home mortgage in that state and, from time to time,

making payments of principal and/or interest to a bene-

ficiary domiciled in a state other than Illinois, are not

sufficient to connect the trust more closely with Illinois

than with Wisconsin in light of the trust’s having been

created in Wisconsin by a Wisconsin settlor, registered

in Wisconsin, and subject to the power to appoint suc-

cessor trustees that was accorded the Wisconsin court.

In summary, the registration of the trust in Wisccnsin

and the power of appointment accorded the Wisconsin

court evidence Page’s intent that the trust should be

administered in that state. George Bridges and Ruste

Bridges accepted the trusteeship with knowledge of

these considerations and therefore can be deemed to

have consented to the jurisdiction of the Wisconsin court

insofar as that court might act to determine any rights

or liabilities relating to the trust. See Uniform Probate

Code § 7-103 and comment; G. Bogert, supra, § 292, at

412. These facts satisfy the “minimum contacts” stand-

ard of International Shoe Co. v. Washington, 326 U.S.

310 (1945), and therefore an exercise of jurisdiction by

the Wisconsin court over Norton’s claim is consistent

with due process.

A-39

C. Wisconsin Statutory Jurisdiction

The seminal Wisconsin case dealing with an assertion

of jurisdiction over nonresidents of Wisconsin in a trust

action is Laughlin v. Wells Building Co., 169 Wis. 50,

171 N.W. 755 (1919). The defendants argue that Laugh-

lin precludes a Wisconsin court from exercising juris-

diction over that portion of Norton’s claim which is at

issue on this appeal.

Laughlin, a Wisconsin resident, filed suit in Wisconsin

seeking a declaration that he was the sole trustee and

enjoining other named defendants from interfering in

the trust. He also sought a determination of all parties’

rights in the trust. The trust assets were located in the

vault of the Wells Building Company (Wells) in Milwau-

kee. All of the defendants, other than Wells, were Mis-

souri residents and had been served summons in the

proceeding pursuant only to an order of publication.

The circuit court found the service to be insufficient.

The Wisconsin Supreme Court reversed and remanded

the case, stating:

No reason is perceived why a court having jurisdic-

tion over the property is not an appropriate forum

in which to maintain the action. Although respond-

ents are all residents of Missouri, it may well

happen that parties similarly situated be residents

of different states, in which case jurisdiction by any

court, except one having jurisdiction of the prop-

erty, would be difficult, if not impossible, of attain-

ment.

171 N.W. at 757. Finding that the state long-arm sta-

tute authorized service by publication against the re-

spondents, the court remanded the case for a determina-

tion as to Laughlin’s duties under the trust agreement.

Laughlin illustrates the principle that if a forum

court has jurisdiction over the trust assets, its in rem

decree may determine or affect all interests in those

assets. G. Bogert, supra, § 292, at 406 and n.19. Con-

trary to the suggestion of the appellees, Laughlin does

not hold that the on/y court having jurisdiction over a

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trust dispute that involves residents of different states is

the forum in which the trust assets are located.

As discussed in Section II(B), supra, this case involves

a trust that was, according to the intent of the settlor, to

be administered in Wisconsin despite the assets Leing

physically present in Illinois. Because the trust at issue

in Laughlin was administered in Wisconsin, one could

argue that Laughlin supports, rather than prohibits, an

assertion of jurisdiction in the present case. We are not

convinced, however, that Laughlin should be read so

broadly. We conclude that it simply does not address the

situation presented by this case. Because we are aware

of no other Wisconsin decision relevant to this contro-

versy, we turn to an interpretation of the pertinent Wis-

consin statutes.

Norton cites both the Wisconsin provisions that avtho-

rize in personam and in rem or quasi in rem jurisdic-

tion. Whether the appropriate jurisdictional basis in this

case is in personam or quasi in rem is not resolved by

Section II(B), supra. It was unnecessary to resolve the

question in determining the constitutionality of Wiscon-

sin’s exercising jurisdiction because demonstrated con-

tacts between the forum and the defendant were re-

quired in either case. Shaffer v. Heitner, 433 U.S. 186

(1977). Further, the Uniform Probate Code, upon which

we relied in addressing the constitutional question fails

to make the distinction between personal and quasi !n

rem jurisdiction. § 7-103 comment.®

The Wisconsin provision governing in rem or quasi in

rem jurisdiction provides, in relevant part, as follows:

A court of this state having jurisdiction of the

subject matter may exercise jurisdiction in rem or

5 The Uniforrn Probate Code relies primarily upon consent

jurisdiction when the defendant is a foreign trustee. § 7-103

comment. As stated above, Wisconsin has not enacted the

Uniform Probate Code and we find no jurisdictional statute

en to the consent jurisdiction upon which the Code

relies.

A-41

quasi in rem on the grounds stated in this section.

A judgment in rem or quasi in rem may affect the

interests of a defendant in the status, property or

things acted upon only if a summons has been served

upon the defendant pursuant to 801.12.

(1) When the subject of the action is real or per-

sonal property in this state and the defendant has

or claims a lien or interest, actual or contingent,

therein, or the relief demanded consists wholly or

partially in excluding the defendant from any inter-

est or lien therein.

Wis. Stat. § 801.07. This statutory section would support

Wisconsin jurisdiction in the present case if the trust

itself is characterized as “property” and the assets,

which are physically in Illinois, are deemed to be sub-

ject to the jurisdiction of the court because the assets

are subject to the trust. This line of reasoning is con-

sistent with Boone v. Wachovia Bank & Trust Co., 168

F.2d 809 (D.C. Cir. 1947), and appears most consistent

with the principle that in rem jurisdiction over a trust

permits a determination of the rights and liabilities of

all interested parties. Restatement, supra, § 267 com-

ment d; G. Bogert, supra, § 292, at 409-10. Further,

characterizing the jurisdictional basis of this action as

in rem or quasi in rem is most consistent with the anal-

ysis in Section II(B), supra, in which we rely primarily

on the relationship of the Page trust to the state of Wis-

consin that is established by the settlor’s intent that the

trust be administered in that state.

Alternatively, Wisconsin permits as assertion of per-

sonal jurisdiction in any action which arises out of:

c. A claim that the defendant return, restore, or

account to the plaintiff for any asset or thing of

value which was within this state at the time the

defendant acquired possession or control over it.

Wis. Stat. § 801.05(6)(c). Because the settlor was a Wis-

consin resident, the trustee’s control over the assets

necessarily originated when the assets were still in Wis-

consin, at the time the trust was created. The applica-

A-42

bility of this statutory section is unaffected by whether

Page forwarded the assets to Bridges in Illinois or

whether Bridges came to Wisconsin to take possession of

them, a factual issue that is unclear from the record.®

Our conclusion that either or both of these staiutory

provisions support Wisconsin jurisdiction over the en-

tirety of Norton’s claim is supported by Wisconsin law

in that the Wisconsin Supreme Court has stated that “at

the time the pertinent provisions of the long-arm statute

were adopted it was intended ‘to provide for the exer-

cise of jurisdiction over non-resident defendants to the

full extent consistent with the requisites of due process

of law.’” Zerbel v. H.L. Federman & Co., 48 Wis. 2d 54,

70, 179 N.W.2d 872, 881 (1970) (quoting Flambeau

Plastics Corp. v. King Bee Manufacturing Co., 24 Wis.

2d 459, 464, 129 N.W.2d 237, 240 (1964)).

D. Exclusivity of Jurisdiction in Jefferson County Court

Having concluded that a ¢éburt sitting in Wisconsin

can exercise jurisdiction over Norton’s entire claim, we

must determine whether the circuit court of Jefferson

County, Wisconsin has exclusive jurisdiction over the

controversy, thereby making removal to the Wisconsin

federal district court improper. Because of his holding

6 The defendants imply in their brief that even if personal

jurisdiction could be exercised by a Wisconsin court over Ruste

Bridges, no personal jurisdiction over Patrick T. Murphy

exists. Section 801.05(12) of the Wisconsin Statutes ermits

an assertion of personal jurisdiction over the persona! repre-

sentative of a deceased person who, if he were living, would

be subject to jurisdiction pursuant to Wis. Stat. §§ 801.05(2)

(11). Although Ruste Bridges is living, her status as an

incompetent under Illinois law, would suggest that section

801.05(12) governs whether jurisdiction can be asserted over

the guardian of her estate. Because the basis of personal jur-

isdiction that would apply to Bridges is codified as Wis. Stat

§ 801.05(6Xc), jurisdiction over Murphy is consistent with sec-

tion 801.05(12)

A-43

that no court in Wisconsin could decide the controversy,

the district judge did not reach this question.’

The Supreme Court disposition in Princess Lida v.

Thompson, 305 U.S. 456 (1939), supports Norton’s con-

tention that jurisdiction lies exclusively in the state

court. In Princess Lida, the Supreme Court considered

whether a Pennsylvania federal district court could

entertain a suit brought by the beneficiaries of an inter

vivos trust alleging mismanagement of the trust funds

and praying that the trustees be removed and made to

account for the losses suffered by the trust. The United

States Supreme Court upheld the decision of the Penn-

sylvania Supreme Court enjoining the petitioners from

proceeding further in the federal court. The United

States Supreme Court distinguished cases like Princess

Lida, in which the claims related to administration and

restoration of corpus, from cases in which a plaintiff

seeks merely an adjudication regarding the validity or

amount of his claims in a fund. Jd. at 466-67. The prin-

ciple illustrated by Princess Lida is that “the court first

assuming jurisdiction over property may maintain and

exercise that jurisdiction to the exclusion of the other.”

Id. at 466.

In West v. First Fond du Lac National Bank, 31 F.

Supp. 169 (E.D. Wis. 1940), the Wisconsin district court

relied on Princess Lida in dismissing a federal action

that sought an accounting and reduction of trust assets

and an appointment of new trustees. The district court

held that, under Wisconsin law, exclusive jurisdiction

vested in the county court.

West involved a testamentary rather than an inter

vivos trust. That distinction does not render the case

inapposite, however, because the trust at issue in Prin-

cess Lida, upon which the West court relied, was created

’ It is conceded that the requirements of diversity jurisdic-

tion are met in that the amount in controversy exceeds

$10,000 and the parties are citizens of different states, see 28

U.S.C. § 1332.

A-44

inter vivos. Further, the West district court relied on

the fact that the will pursuant to which that testamen-

tary trust arose was in probate in the Wisconsin court

as a separate and additional ground for dismissing the

federal action. 31 F. Supp. at 171.

The relief sought by Norton pertains to the actual

administration of the Page trust and is very similar to

that sought in West. The basis of Wisconsin jurisdiction

in this case is fundamentally a power over “property,”

the trust itself to which the assets are subject.§ Pr’ncess

Lida and West support the conclusion that, if the Wis-

consin state court first assumes jurisdiction over the

trust, that jurisdiction is exclusive.

In Princess Lida, jurisdiction had been assumed by

the state court by virtue of the trustees having filed

accountings with the common plea court. In Wer’, the

admission of the decedent’s will, pursuant to which the

trust arose, to probate constituted the prior assertion of

jurisdiction. The defendants argue that this case is dis-

tinguishable because there has been no previous as-

sumption of jurisdiction by the Wisconsin court over the

Page trust.

At issue in Princess Lida was whether the power of

appointment accorded the common plea court would ful-

fill the requirement of a previous assumption of juris-

diction. The state court had been named in the trust

instrument as having the power to appoint a successor

trustee should the remaining trustees be unable to agree

on a choice. There was no indication that such an

impasse among the trustees had occurred. Nonetheless,

the appointment of new trustees had routinely been

reported to the common plea court which had purported

8 Our having considered the applicability of Wis. Stat

§ 801.05(6)(c) (in personam jurisdiction) to this action does not

alter our conclusion that Wisconsin has power to adjudicate

the controversy primarily because of that state’s relationship,

as a reflection of the settlor’s express and implied intent, to

the administration of the trust.

A-45

to confirm and ratify the action taken by the trustees.

305 U.S. at 462. The petitioners urged that this action

by the state court was wholly gratuitous and therefore

did not constitute an assumption of jurisdiction. The

Supreme Court stated that it was “unnecessary to pass

upon the contention.” of the petitioners. Jd.

In the present case, the Jefferson County, Wisconsin

court is not only accorded a power of appointment but

will forthwith be reauired to exercise it. Nothing in

Princess Lida remotely suggests that such required

_ exercise of a power of appointment fails to constitute an

assumption of jurisdiction. The pertinent Wisconsin stat-

utes, in fact, imply that the power to appoint a succes-

sor trustee exists only if the court does have jurisdiction

over the trust. See Wis. Stat. § 707.17(1) (appointment of

successor trustee by “court”) and § 701.01(8) (“court”

defined as “court having jurisdiction”). The exercise of

the power to appoint a successor trustee of the Page

trust will constitute the first assumption of jurisdiction

in this case and will entitle the Wisconsin state court to

adjudicate the entire controversy, thereby excluding the

federal district court from any role in the controversy.

CONCLUSION

The Jefferson County, Wisconsin circuit court may

assert exclusive jurisdiction over the entire claim urged

by Norton. The varying relief Norton seeks suggests

that the ccurt having power over the trust, to which the

assets are subject, is the appropriate forum in which to

litigate this dispute. Such an assertion of jurisdiction is

consistent with the requirements of both due process

and Wisconsin statutory law. Further, the consolidation

of all proceedings regarding the trust in one court is

consistent with the policy favoring resolution of all

trust-related questions in one forum. The order of the

district court dismissing Norton's claim seeking a re-

duction of trust assets, an accounting, and termination

of the trust is reversed. The case is remanded to the dis-

A-46

trict court with instructions to remand the entire rmat-

ter to the circuit court of Jefferson County, Wisconsin.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Cir-xit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.