Winter v. Winter

970 N.W.2d 566 (Table)

2022 WI App 7

Kimberly WINTER, Plaintiff-Appellant,

v.James WINTER, Defendant-Respondent.

In re the Estate of Augustus Pocius Winter:

Kimberly Winter, Appellant,

v.James Winter, Respondent.

Appeal Nos. 2019AP1374

2020AP702

Court of Appeals of Wisconsin.

July 13, 2021

PER CURIAM.

¶1 In these consolidated appeals, Kimberly Winter appeals an order dismissing her civil case against James Winter, and she also appeals an order denying her petitions for formal and special administration of the Estate of Augustus Pocius Winter ("the Estate").¹ In both cases, Kimberly sought to contest the validity of a quitclaim deed that purportedly transferred real property in Oneida County from Kimberly's father, Augustus Pocius Winter, to Kimberly's brother, James Winter.² In Kimberly's civil case, the circuit court concluded that it lacked subject matter jurisdiction over Kimberly's claims because a Wisconsin probate court would have exclusive jurisdiction over those claims. Kimberly then filed petitions for formal and special administration of the Estate, and the court denied her petitions, concluding that previous litigation in California barred Kimberly's claims under the doctrine of issue preclusion.

¶2 On appeal, Kimberly argues, among other things, that the circuit court erred when it failed to grant her petition for special administration of the Estate and that the court prematurely considered the matter of issue preclusion before appointing a special administrator. We agree and reverse the court's decision to deny Kimberly's petition for special administration, and remand for the court to appoint a special administrator. Because the appointment of a special administrator will invariably allow Kimberly to contest the validity of the quitclaim deed, Kimberly's appeal in her civil case is moot, and we dismiss that appeal.

BACKGROUND

¶3 On March 1, 1989, Augustus and Marion Winter executed the Winter Family Trust Agreement ("the Trust"), naming themselves as trustees and beneficiaries of the Trust. Augustus and Marion also named their son James and their daughter Kimberly as successor co-trustees. On the same day, Augustus executed a will that distributed the residue of his estate upon his death to the Trust, via its acting trustee. Augustus nominated Marion as the executor of his will, and he nominated Kimberly and James as successor co-executors.

¶4 Shortly thereafter, Marion became incapacitated after suffering injuries in a car accident. Marion has been the subject of a conservatorship in California since at least 1996, and James has served as Marion's conservator since 2009. In August 2010, Augustus passed away in San Diego County, California, where he and Marion resided. The Estate was never administered in California because a California court determined that either Marion already owned all of Augustus's property at the time of his death or the property was previously transferred to the Trust, of which Marion was the remaining primary beneficiary.

¶5 Following Augustus's death, Kimberly and James were involved in two probate cases in California regarding the Trust and Marion's conservatorship. The cases involved interrelated issues regarding James's duties as co-trustee of the Trust and his duties as Marion's conservator. In relation to these two cases, James filed an accounting as Marion's conservator, and Kimberly objected to this accounting. Kimberly argued, among other things, that James neglected to account for real property in Oneida County, Wisconsin, for the benefit of Marion's conservatorship, which she said belonged to Augustus at the time of his death.

¶6 After Kimberly's objection, James recorded a quitclaim deed on September 22, 2015, with the Oneida County Register of Deeds that purportedly transferred the real property in Oneida County from Augustus to James. According to the deed, Augustus personally drafted the quitclaim deed and executed it before a Wisconsin notary on February 4, 2008. James later explained in a declaration to the California court that his father individually owned the Oneida County property and that the property was never included in the Trust, nor did Marion ever possess any ownership rights to the property. James stated that Augustus transferred the property to him in 2008 and that he became the sole owner of the property at that time. James reaffirmed these statements in a later hearing and further testified that sometime before 2012, he told Kimberly about the transfer of the property.

¶7 On November 16, 2017, the California court issued an order approving James's accounting. Regarding the Oneida County property, the court stated:

As to the objection raised by Kimberly Winter that the Conservator has entirely neglected his duty to address the marshaling of personal and real property in the state of Wisconsin that should be held for the benefit of the Conservatee, the Court found and stated on the record "There is no evidence to convince the Court that the Wisconsin property should be part of the conservatorship estate or any other estate. Apparently it is Mr. Winter's, and nobody has rebutted that successfully in my opinion. So the Court doesn't expect Mr. Winter to account for the property, because he owns it individually. That request is denied to the extent there is a request or objection."

¶8 Kimberly subsequently commenced a civil action against James in Wisconsin, seeking a declaration of the parties’ interests in the Oneida County property. Kimberly alleged in her amended complaint that James obtained the property fraudulently. She further alleged that records from Marion's nursing care show that Augustus was in California with Marion on February 4, 2008, the day he purportedly executed the quitclaim deed in Wisconsin. Kimberly also alleged that Augustus kept a calendar and that he did not document any travel or indicate being present in Wisconsin in February 2008. Kimberly further alleged that Augustus continued paying the property taxes, property insurance, and utility bills for the Oneida County property until his death. Alternatively, Kimberly alleged that Augustus lacked the capacity to execute the quitclaim deed.

¶9 James moved to dismiss Kimberly's complaint. He argued, among other things, that Kimberly lacked standing to commence the action on behalf of the Trust. He also argued that the California probate cases barred Kimberly's claim that Augustus owned the Oneida County property under the doctrines of claim and issue preclusion.

¶10 The circuit court concluded that Kimberly's claims were not barred by claim and issue preclusion because the California court did not have jurisdiction to declare the rights of real property in Wisconsin. The court concluded, however, that it lacked subject matter jurisdiction because Wisconsin probate courts would have exclusive jurisdiction over Kimberly's claims. The court explained that if Augustus did not deed the Oneida County property to James, as Kimberly claimed, then Augustus owned the property at the time of his death and the property could only be transferred from the Estate to the Trust through probate. The court dismissed Kimberly's complaint, and Kimberly appealed.

¶11 Shortly after filing the notice of appeal in her civil case, Kimberly initiated a probate action through a petition for formal administration under WIS. STAT. § 856.07 (2019-20),³ requesting that she be appointed as personal representative of the Estate. Kimberly also subsequently filed a petition for special administration under WIS. STAT. § 867.07, requesting that she be appointed as a special administrator of the Estate in order to prosecute a declaration of interest action to determine the validity of the quitclaim deed that purportedly transferred the Oneida County property. Kimberly alleged that she was an interested person because she was "a named co-personal representative in the decedent's last will." Kimberly clarified to the circuit court that she sought to either be appointed as a personal representative under her petition for formal administration or be appointed as a special administrator under her petition for special administration. In either instance, an appointment would grant her the authority to pursue claims related to the Oneida County property on behalf of the Estate.

¶12 James objected to both of Kimberly's petitions and argued, among other things, that the statute of limitations, issue preclusion, and laches barred Kimberly's claims that Augustus owned the Oneida County property. In response to James's objections, Kimberly argued that the circuit court should not yet consider James's defenses because Kimberly was only "asking for a court representative to be appointed to bring the lawsuit." Kimberly acknowledged that James's objections would be "relevant to the lawsuit" and that James could "raise those issues in the lawsuit as defenses." She asserted, however, that "nothing in the probate code, especially the special administration code, requires us to prove the lawsuit today; just to get a representative appointed to file the lawsuit."

¶13 In responding to James's objections, the circuit court recognized that James had previously raised issue preclusion in Kimberly's civil case and that the court rejected his argument in that regard. The court believed, however, that James had presented new law regarding his issue preclusion argument in his objections to the petitions in the probate case. Relying on this additional authority, the court concluded that "a California court has in personam jurisdiction over the parties relative to real estate located outside of California in the context of this case." Thus, the court believed that it had incorrectly concluded in Kimberly's civil case that the California probate court lacked jurisdiction for purposes of issue preclusion.

¶14 Based on the circuit court's belief that a California court had jurisdiction over the real estate in Wisconsin, and based on the November 16, 2017 ...