Board of Regents of University of Wisconsin System v. Mussallem

289 N.W.2d 801, 94 Wis. 2d 657, 1980 Wisc. LEXIS 2497
CourtWisconsin Supreme Court
DecidedMarch 4, 1980
Docket77-422
StatusPublished
Cited by43 cases

This text of 289 N.W.2d 801 (Board of Regents of University of Wisconsin System v. Mussallem) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Regents of University of Wisconsin System v. Mussallem, 289 N.W.2d 801, 94 Wis. 2d 657, 1980 Wisc. LEXIS 2497 (Wis. 1980).

Opinion

COFFEY, J.

The plaintiff, Board of Regents of the University of Wisconsin System, commenced an action on January 21, 1977, for collection of loans made to the defendant while attending law school (during the period from September, 1965 to June, 1968). This is an appeal from an order of the trial court denying the defendant-appellant’s, Victor Mussallem, motions: (1) to dismiss on the grounds that the cause of action was barred by the six-year statute of limitations or alternatively on the grounds of lack of subject matter jurisdiction; (2) to strike the affidavits in support of the plaintiff-respondent’s, Board of Regents, motion for summary judgment; (3) to compel discovery and for production of documents, and the granting of judgment in favor of the plaintiff.

In its complaint the plaintiff Board of Regents alleged the following:

“That on or about September 9, 1966, the defendant and plaintiff entered into an agreement whereby the plaintiff would, subject to the terms and conditions of a signed note, a true and correct copy of which is attached hereto, loan certain sums of money to said defendant for the purpose of financing his education.
“That on or about the following dates, additional moneys were advanced to said defendant, under the aforementioned agreement, said additional moneys becoming a part of the principal due under the note evidencing said agreement: 12-14-66; 1-25-67; 9-14-67; 1-8-68; 9-10-68.
“That demand has been made for payments under the above agreement, but none have been forthcoming and, under the terms of said agreement, the defendant is therefore in default.
*661 “That, under the terms of the above-described agreement, as set forth in the attached note, all of the money loaned to the defendant, along with interest at three percent (3%) per annum, is now due and owing, the total amount due being $5729.63, the principal amount being $4630.00 of said total, the interest through February, 1977, having been added thereto.
“That, under the terms of said agreement, the plaintiff has declared the above balance to be due in its entirety.”

The plaintiff demanded judgment in the amount of $5,-729.63, plus costs and interest from March 1, 1977, until the date of payment.

The defendant moved to dismiss the plaintiff’s cause of action, pursuant to sec. 802.06, Stats., on the grounds that it was barred by the six-year statute of limitation governing actions on contracts, obligations or liabilities (sec. 893.19(3), Stats. 1 ). The court, in denying the defendant’s motion to dismiss, found it to be an instrument under seal and therefore the 20-year statute of limitation (sec. 893.16(2), Stats. 2 ), controlled rather than the six-year statute, as Mussallem alleged. Following the denial of his motion to dismiss, the defendant filed an answer, asserting a general denial and also again raising the six-year statute of limitation as an affirmative defense.

Thereafter, the plaintiff brought a motion for summary judgment contending that “. . . there is no genuine issue as to any material fact and the plaintiff is entitled to judgment as a matter of law.” In response to *662 the plaintiff’s motion for summary judgment, the defendant moved for an order:

“1. Striking- the ‘Affidavit of Regular and Usual Procedure’ of Marjorie K. Buchanan annexed to Plaintiff’s Motion for Summary Judgment, upon the grounds that said affidavit contained no evidentiary facts relevant to this action which would be admissible in evidence under Wisconsin Statute §904.06 (2).
“2. Striking the Supplemental Affidavit of Charles S. Lueck in support of plaintiff’s Motion for Summary Judgment, upon the grounds that Paragraphs Three, Four, Five and Six of said affidavit are made upon information and belief, contrary to Wisconsin Statute §802.08(3), and to strike the words ‘under seal’ from Paragraph Four of said affidavit, upon the ground that said language is a legal conclusion rather than a statement of fact.”

In addition, he also filed motions:

1. to compel the plaintiff to answer the defendant’s interrogatories, No. 4(c) and No. 4(c) (1), 3 and also to produce certain documents (i.e., the appellant’s loan application forms and the note); and

2. to dismiss the cause of action on the grounds that the court was without subject matter jurisdiction as the respondent failed to serve a Notice of Right to Cure as required by secs. 425.104 and 425.105, Stats., until after the commencement of the present action on September 30, 1977.

The plaintiff, in responding to the motion to produce, pointed out that the defendant had previously received a copy of the note appended to the complaint (Exhibit A) and that he had knowledge that the loan application *663 forms were available for inspection at the office of the plaintiff’s attorney.

The court denied the defendant’s motions and entered judgment in favor of the plaintiff, Board of Regents, reciting the following in its findings:

1. the appellant had waived his right to the defense of lack of subject matter jurisdiction by not raising it “before pleading” or by including it in a “responsive pleading” [as required by sec. 802.06 (2), Stats., 4 ] ;

2. “. . . all relevant documents were made available to the defendant. . .” and thus there was no need for an order to compel production of the documents;

3. the affidavits made in support of the motion for summary judgment were made upon personal knowledge and thus permissible, pursuant to sec. 802.08(3), Stats. 5

*664 4. “The defendant had not denied the existence of the obligation to pay, that he is the maker of the note or that the amount specified (or ‘sum certain’) is accurate,” thus the plaintiff is entitled to judgment as “. . . [n]o material facts are in dispute, no competing inferences can arise, and the law applicable to this situation is clear.”

The defendant appeals from the order denying his motions and granting judgment.

ISSUES

1. Is sec. 425.104, Stats., and/or sec. 425.105, dealing with Notice to Cure Default of the Wisconsin Consumer Act, applicable to student loans granted under the control of a university board of regents or trustees ?

2. If secs. 425.104 and 425.105, Stats., are applicable, did the plaintiff’s failure to comply with the provisions deprive the trial court of subject matter jurisdiction?

3. Does the six-year statute of limitation, or the twenty-year statute of limitation for contracts under seal apply in this case ?

4. Did the trial court err in granting the motion for summary judgment?

5.

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Cite This Page — Counsel Stack

Bluebook (online)
289 N.W.2d 801, 94 Wis. 2d 657, 1980 Wisc. LEXIS 2497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-regents-of-university-of-wisconsin-system-v-mussallem-wis-1980.