Patricia Lowell Hammarback v. Estate of Belmar Gunderson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 1, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1673 Cir. Ct. No. 2023CV209

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

PATRICIA LOWELL HAMMARBACK,

PLAINTIFF-APPELLANT,

V.

ESTATE OF BELMAR GUNDERSON,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Pierce County:
THOMAS W. CLARK, Judge. Reversed and cause remanded for further
proceedings.

Before Stark, P.J., Hruz, and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP1673

¶1 PER CURIAM. Patricia Hammarback appeals a circuit court order
dismissing her civil action against the Estate of Belmar Gunderson (“the Estate”).
Hammarback argues that the court erred by determining that it lacked competency
to adjudicate the action and that the court also erroneously exercised its discretion
by determining that principles of comity required dismissal. We agree with both
of Hammarback’s arguments. Therefore, we reverse and remand for further
proceedings.

BACKGROUND

¶2 In 2019, Belmar Gunderson executed a warranty deed conveying the
remainder interest in property located in Pierce County, Wisconsin, to
Hammarback.1 Hammarback and Gunderson executed a supplemental agreement
the following year. Under the terms of the deed and supplemental agreement,
Gunderson retained a life interest in the property that required Gunderson to “pay
all taxes, assessments, repairs, and … maintain all structures in good
condition … and carry insurance fully insuring the structures and premises during
her natural life.” Hammarback executed a note and mortgage for $400,000 and
alleges that she still owes $190,000 on that note.

¶3 On May 15, 2023, Gunderson died while domiciled in Florida. On
June 23, 2023, Margaret Hoyt filed a petition for the administration of the Estate
in Florida and was appointed personal representative of the Estate. While the
Florida probate action was pending, Hammarback filed an action in Wisconsin for
special administration of the Estate (“the first Wisconsin action”). Hammarback

1
In its brief, the Estate characterizes this transaction as a “contract for deed.”

2
No. 2024AP1673

also filed a claim against the Estate in the first Wisconsin action. The first
Wisconsin action was terminated in October 2023.

¶4 On November 2, 2023, the Florida probate court entered an order
directing that “[a]ll claims in the Estate of Belmar Gunderson, wherever they
reside, should be filed in this, the Florida domiciliary estate.” On November 28,
2023, Hammarback filed a claim in the Florida probate court alleging that
Gunderson had breached the terms of the deed and supplemental agreement,
resulting in damages totaling $278,231.74. On December 8, 2023, Hoyt filed an
objection to Hammarback’s claim. Hoyt’s objection stated that Hammarback had
“thirty (30) days … within which to bring an action on the claim, as provided by
FLORIDA PROBATE RULE 5.496 and FLA. STAT. § 733.705.”

¶5 On December 15, 2023, Hammarback filed the complaint, in
Wisconsin, that gives rise to this appeal. Therein, Hammarback alleged that
Gunderson had breached the terms of the deed and supplemental agreement by
“fail[ing] to pay for repairs on the Property and fail[ing] to maintain all structures
in good condition.” The complaint set forth the same deficiencies that
Hammarback identified in her Florida probate claim and alleged the same amount
of damages. Hammarback sought to have the money judgment offset against the
$190,000 still owed on the note and mortgage. Hammarback also sought a
declaratory judgment “that the Note is paid in full, and that the mortgage is
thereby satisfied and released.”

¶6 The Estate moved to dismiss Hammarback’s complaint, arguing that
the circuit court did “not have subject matter jurisdiction or competency to hear
[Hammarback’s] claims” and that “[p]rinciples of judicial comity indicate the
motion to dismiss should be granted to further the orderly administration of

3
No. 2024AP1673

justice.” Following a hearing, the court orally granted the Estate’s motion to
dismiss. The court explained that although it had subject matter jurisdiction to
hear a probate case, it lacked competency to hear this particular case. The court
further concluded that principles of comity required dismissal. The court entered
its written order on July 9, 2024. Hammarback appeals.

DISCUSSION

¶7 Hammarback argues that the circuit court’s decision to grant the
Estate’s motion to dismiss was based on legal errors regarding Florida and
Wisconsin probate law. Absent these errors, Hammarback argues that the court
should have determined that it was competent to adjudicate Hammarback’s action
and that principles of comity did not require dismissal.

I. Competency

¶8 Under article VII, section 8 of the Wisconsin Constitution, “[e]xcept
as otherwise provided by law, the circuit court shall have original jurisdiction in
all matters civil and criminal within this state.” WIS. CONST. art. VII, § 8. Our
supreme court has “recognized, however, that a circuit court’s ability to exercise
the subject matter jurisdiction vested in it by the constitution may be affected by
noncompliance with statutory requirements pertaining to the invocation of that
jurisdiction in individual cases.” Village of Trempealeau v. Mikrut, 2004 WI 79,
¶9, 273 Wis. 2d 76, 681 N.W.2d 190. Accordingly, “a failure to comply with a
statutory mandate pertaining to the exercise of subject matter jurisdiction may
result in a loss of the circuit court’s competency to adjudicate the particular case
before the court.” Id. “Whether a circuit court has lost competency is a question
of law that we review independently.” Id., ¶7.

4
No. 2024AP1673

¶9 In its brief in support of its motion to dismiss, the Estate argued that
WIS. STAT. § 859.02 (2023-24)2 “specifically bars … all claims against an estate if
not filed timely as part of estate administration.” The Estate further argued that in
order to comply with Wisconsin law, Hammarback’s “claims would need to be
filed against the estate as part of the estate administration,” which was pending in
Florida. Because Hammarback had “previously tried to file a special
administration in Wisconsin and was court-ordered by the Florida Probate judge
that this was not proper,” the Estate argued that Hammarback’s second Wisconsin
action was “another attempt to circumvent this rule.” Accordingly, the Estate
contended that “by application of the statutory restrictions
under … § 859.02[,] … this Court is not competent to entertain this matter.”

¶10 The circuit court agreed with the Estate’s argument that it lacked
competency to adjudicate the dispute. Specifically, the court concluded that the
Florida probate court “has ordered that all claims in the matter be filed in the
Florida court. Wisconsin law under [WIS. STAT.] § 859.02 requires
[Hammarback’s] claim … to be filed in a court exercising probate jurisdiction. In
this case, that is the Florida court.”

¶11 Hammarback contends that she did in fact comply with the Florida
probate court’s order when she filed her claim as part of the Florida probate
action. Hammarback further argues that the Wisconsin complaint that gives rise to
this appeal is an appropriate next step under Florida probate law.

2
All references to the Wisconsin Statutes are to the 2023-24 version.

5
No. 2024AP1673

¶12 The parties agree that there are three procedural steps to address a
claim against an estate under Florida probate law. First, an initial claim against an
estate must be made in a probate proceeding. See FLA. STAT. § 733.702(1)
(2024).3 Second, the personal representative of the estate has 30 days to file an
objection to the claim. See FLA. STAT. § 733.705(2). Third, if there is an
objection, the claimant then has 30 days to file an independent action on the claim.
See § 733.705(5).

¶13 The parties also agree that the first two steps were completed in
accordance with Florida probate law. The parties’ disagreement centers on the
third step. Specifically, the parties disagree about whether the Wisconsin
complaint that gives rise to this appeal was a properly filed independent action in
accordance with FLA. STAT. § 733.705(5).

¶14 When the Estate filed its objection to Hammarback’s claim in the
probate action, the Estate notified Hammarback that she had 30 days “within
which to bring an action on the claim, as provided by FLORIDA PROBATE
RULE 5.496 and [FLA. STAT.] § 733.705.”4 In turn, § 733.705 provides,

The claimant is limited to a period of 30 days from the date
of service of an objection within which to bring an
independent action upon the claim, or a declaratory action
to establish the validity and amount of an unmatured claim
which is not yet due but which is certain to become due in
the future, or a declaratory action to establish the validity of

3
The parties base all of their arguments on the text of the 2024 version of the relevant
Florida statutes. However, both parties’ arguments rely on decisions interpreting prior versions
of FLA. STAT. § 733.705, dating as far back as 1977. Neither party has addressed whether there
have been any statutory changes that would affect our evaluation of their arguments.
4
Neither party has addressed FLORIDA PROBATE RULE 5.496. We therefore assume that
the issue in this appeal can be decided under FLA. STAT. § 733.705.

6
No. 2024AP1673

a contingent claim upon which no cause of action has
accrued on the date of service of an objection and that may
or may not become due in the future, unless an extension of
this time is agreed to by the personal representative in
writing before it expires.

Id.

¶15 Hammarback argues that the complaint that gives rise to this appeal
is an independent action under FLA. STAT. § 733.705(5), and that Florida probate
law permits an independent action to be brought outside of Florida. See Poulsen
v. First Nat’l Bank, 407 So. 2d 338, 339-40 (Fla. Dist. Ct. App. 1981); Dimick v.
Estate of Barry, 787 So. 2d 198, 202 (Fla. Dist. Ct. App. 2001). Hammarback
also contends that Florida law “does not allow the merits of the claim to be
litigated in the Florida probate proceeding.” The Estate focuses on this last
contention, arguing that Hammarback could have filed her independent action in
Florida probate court. Even if the Estate were correct that Hammarback could
have filed her independent action in the Florida probate court, the Estate has not
established that § 733.705(5) required Hammarback to file her independent action
in that court.

¶16 On the contrary, in Poulsen, the Florida Court of Appeal, Fourth
District stated that “nothing in [FLA. STAT. § 733.705] requires that the
independent action be filed in the geographical limits of the State of Florida.”
Poulsen, 407 So. 2d at 339-40. The Estate does not make any argument that this
statement in Poulsen is incorrect or otherwise inapplicable to Hammarback’s
independent action under § 733.705. Instead, the Estate argues that “there will
occasionally be claims that must be filed in other jurisdictions due to a lack of
personal jurisdiction in Florida,” citing Sampson Farm Ltd. Partnership. v.
Parmenter, 238 So. 3d 387, 390 (Fla. Dist. Ct. App. 2018), but this is not one of

7
No. 2024AP1673

them. Sampson is an example of a situation in which a claimant would be
required to file in another jurisdiction. However, nothing in Sampson indicates
that an independent action can only be filed outside of Florida when personal
jurisdiction in Florida is absent, nor does it address whether, under some
circumstances, an independent action must be brought in Florida. Thus, the Estate
has not established that Florida law prohibits Hammarback from filing her
independent action in Wisconsin.

¶17 Turning to the circuit court’s alleged error in applying Wisconsin
law, Hammarback contends that the court erred by concluding that WIS. STAT.
§ 859.02 applies to Hammarback’s independent action. This statutory provision
states that “all claims against a decedent’s estate … are barred against the estate,
the personal representative and the heirs and beneficiaries of the decedent unless
filed on or before the date set under [WIS. STAT. §] 859.01.” Sec. 859.02. In turn,
§ 859.01 provides that, “[w]hen an application for administration is filed, the
court, or the probate registrar under informal administration proceedings, shall by
order set a date as the deadline for filing a claim against the decedent’s estate.”
Hammarback contends that these two provisions must be read together, so that the
bar in § 859.02 only applies if an application for administration has been filed in
Wisconsin and the Wisconsin circuit court has set a deadline for filing claims.
Here, there is no pending Wisconsin probate proceeding, so Hammarback argues
that “[w]ithout a claims deadline established under § 859.01, the bar set forth in
§ 859.02 can never apply.”

¶18 The Estate argues that WIS. STAT. § 859.02 bars Hammarback’s
complaint because “[l]ogic dictates that ‘a claim against a decedent’s estate’
cannot be timely filed in a Wisconsin court with probate jurisdiction if no such
action is pending.” The Estate further argues that because “the Florida domiciliary

8
No. 2024AP1673

estate is primary,” Hammarback’s claim requires “at a minimum … some type of
ancillary Wisconsin probate proceeding … to prevent … § 859.02 from barring
the claim.”

¶19 Neither party identifies authority to support their proposed
interpretation of WIS. STAT. § 859.02. However, the Estate’s proposed
interpretation requires us to read additional language into the statute—namely, that
the bar in § 859.02 applies unless there is a pending Wisconsin probate action and
the claim is timely. If the legislature intended for § 859.02 to operate as more than
a time bar in situations where a deadline has already been set, the legislature could
have so stated. See Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d
318, 801 N.W.2d 316 (“We decline to read into the statute words the legislature
did not see fit to write”). Instead, we agree that Hammarback’s reading of the
statute is the most logical: if there is no Wisconsin probate proceeding, there can
be no deadline set under WIS. STAT. § 859.01, and thus the time bar in § 859.02
does not apply.

¶20 In conclusion, the Estate has not identified any Florida or Wisconsin
authority that prohibits Hammarback from filing an independent action in
Wisconsin pursuant to FLA. STAT. § 733.705(5). Because the Estate has not
identified any statutory mandate that implicates the Wisconsin circuit court’s
competency, see Mikrut, 273 Wis. 2d 76, ¶¶9-10, we conclude that the court, here,
erred by dismissing Hammarback’s complaint for a lack of competency.

II. Principles of Comity

¶21 The circuit court also relied upon “principles of comity” as a second
basis for dismissing Hammarback’s complaint. According to “the traditional
doctrine of comity, … courts will as a matter of discretion rather than obligation

9
No. 2024AP1673

defer to the assertion of jurisdiction … of other states or sovereigns out of mutual
respect, and for the purpose of furthering the orderly administration of justice.”
Teague v. Bad River Band, 2000 WI 79, ¶35, 236 Wis. 2d 384, 612 N.W.2d 709.

¶22 We review a circuit court’s determination that principles of comity
require dismissal for an erroneous exercise of discretion. Hennessy v. Wells
Fargo Bank, N.A., 2022 WI 2, ¶¶40-44, 400 Wis. 2d 50, 968 N.W.2d 684. A
court erroneously exercises its discretion when it makes an error of law or fails to
base its decision on the record facts. Barricade Flasher Servs., Inc. v. Wind Lake
Auto Parts, Inc., 2011 WI App 162, ¶5, 338 Wis. 2d 144, 807 N.W.2d 697.

¶23 Here, the circuit court concluded that “comity requires that the Court
defer to the jurisdiction of the Florida courts over this claim.”5 On its face, this
statement is incorrect because comity is “a matter of discretion rather than
obligation.” See Teague, 236 Wis. 2d 384, ¶35. Nonetheless, assuming that the
circuit court’s conclusion reflects an exercise of discretion, the Estate argues that
dismissal is consistent with our supreme court’s statement that “[o]rdinarily, a
court should not exercise jurisdiction over subject matter over which another court
of competent jurisdiction has commenced to exercise it.” Sheridan v. Sheridan,

5
Because the circuit court did not explain its reasoning for this aspect of its decision, we
cannot determine whether the court was referring to the initial claim that Hammarback had
properly filed in probate court or whether the court was referring to Hammarback’s independent
action pursuant to FLA. STAT. § 733.705(5). For the purpose of this appeal, we will assume that
the court was referring to the independent action.

If, instead, the circuit court was referring to the Florida probate court’s jurisdiction over
Hammarback’s initial claim, the court erred by concluding that jurisdiction over a properly filed
probate claim is the equivalent of jurisdiction over an independent action that had not yet been
filed. See Garland v. Barnes, 372 So. 2d 128, 129 (Fla. Dist. Ct. App. 1979) (describing an
independent action as “a separate action upon a claim against an estate” that “allows pleadings
and responses sufficient to set the issues before the court” (citation omitted)).

10
No. 2024AP1673

65 Wis. 2d 504, 510, 223 N.W.2d 557 (1974) (citation omitted). The parties’
dispute over whether the Florida probate court can exercise jurisdiction over
Hammarback’s independent action is relevant to determining whether the general
rule in Sheridan applies.

¶24 Hammarback argues that an independent action under FLA. STAT.
§ 733.705(5) “requires the filing of a separate action upon a claim against an estate
to which an objection has been filed.” See Garland v. Barnes, 372 So. 2d 128,
129 (Fla. Dist. Ct. App. 1979) (citation omitted). Hammarback further contends
that she was required to file this independent action outside of the Florida probate
court because that court is unable to hear the merits of the independent action she
sought to bring.

¶25 The Estate contends that by exercising probate jurisdiction, the
Florida probate court necessarily has jurisdiction over independent actions as well.
Citing Northern Trust Co. v. Abbott, 313 So. 3d 792, 797 (Fla. Dist. Ct. App.
2021), the Estate argues that the Florida probate court “acts as a clearinghouse to
determine if the initial claim is timely, legally sufficient, or in fact requires an
independent action.” If the Florida probate court determines that it is unable to
reach the merits of the claim, the probate court can direct or transfer the matter to
a sister court. See, e.g., West v. West, 126 So. 3d 437, 439 (Fla. Dist. Ct. App.
2013); Grossman v. Selewacz, 407 So. 2d 728, 730 (Fla. Dist. Ct. App. 1982).

¶26 We conclude that the decisions cited by the Estate do not support its
argument that Hammarback was required to file her independent action in the
Florida probate court. The issue in Northern Trust was whether a probate court’s
denial of a motion to strike a claim was a final order for the purpose of appeal.
See Northern Trust, 313 So. 3d at 795. After concluding that dismissal of the

11
No. 2024AP1673

appeal was appropriate, the Florida Court of Appeal, Second District “address[ed]
the parties’ arguments related to the scope of the probate court’s jurisdiction when
faced with both an objection, which results in the filing of an independent action
in circuit court, and a motion to strike a statement of claim.” Id. at 797 (emphasis
added). The court explained that “[a] motion to strike tests the facial sufficiency
of the statement of claim, whereas the objection—which requires the claimant to
file an independent action—relates to the validity or merits of a facially sufficient
claim.” Id. The court concluded that when faced with a motion to strike and an
objection, “the probate court must first determine the facial sufficiency of the
claim before the parties litigate the subject matter of the claim in circuit court.”
Id.

¶27 Here, there is no dispute that the Estate filed an objection to
Hammarback’s claim, not a motion to strike the statement of claim. Thus,
Northern Trust indicates that the proper procedure is for Hammarback to file “an
independent civil action, not part of the probate proceeding,” as Hammarback
argues.

¶28 We also do not see anything in West that supports the Estate’s
argument that Hammarback was required to file her independent action in the
Florida probate court. On the contrary, West involved an order of the probate
court that dismissed a claimant’s adversary proceeding because it should have
been filed as an independent action in civil court. See West, 126 So. 3d at 438.
The Florida Court of Appeal, Fourth District reversed, concluding that rather than
dismissing the incorrectly filed action altogether, the probate court should have
transferred the independent action to the circuit court. Id. at 438-39. Thus, on its

12
No. 2024AP1673

face, West also supports Hammarback’s argument that the proper procedure is to
file “an independent civil action, not part of the probate proceeding.”6

¶29 Finally, the Estate cites Grossman for the proposition that a
“complaint filed in the civil division which should have been filed in probate
division should not be dismissed.” See Grossman, 417 So. 2d at 730. Instead,
“cases filed in the wrong division should be transferred to the proper division.”
Id. Grossman does not involve an independent action under FLA. STAT.
§ 733.705(5), nor has the Estate developed any argument as to how Grossman
relates to its contention that Hammarback should have filed her independent action
in Florida probate court.

¶30 At best, the Florida decisions cited by the Estate establish that if
Hammarback had mistakenly filed her independent action in Florida probate court,
the probate court could transfer it to a circuit court. But the Estate has not
established that the Florida probate court was required to, or even permitted to
adjudicate Hammarback’s independent action.7 Thus, there is no basis to conclude
that the Florida probate court is a court of competent jurisdiction. See Sheridan,
6
The decision in West also refers to a 2008 administrative order issued by the chief
judge of the fifteenth circuit, “which declared that ‘independent actions’ be filed in the civil
division.” West v. West, 126 So. 3d 437, 438 (Fla. Dist. Ct. App. 2013). Neither party has
addressed the significance of this declaration, so we have no basis to evaluate whether the
administrative order interprets what FLA. STAT. § 733.705(5) already requires or whether the
order was the sole basis for the probate court’s determination that the independent action was
improperly filed in probate court. Similarly, neither party addresses whether there is a current
administrative order that applies to Hammarback’s independent action.
7
The Estate also cites FLA. STAT. § 733.705(10) for the proposition that a probate court
“may … determine all issues concerning claims or matters not requiring trial by jury.” The Estate
has not developed any argument to establish that this statutory provision applies to independent
actions under § 733.705(5). Moreover, such an interpretation of § 733.705(10) would be
inconsistent with Northern Trust Co. v. Abbott, 313 So. 3d 792, 797 (Fla. Dist. Ct. App. 2021),
and West, which both held that the Florida probate court was not the proper forum for an
independent action.

13
No. 2024AP1673

605 Wis. 2d at 510. As a result, our supreme court’s general rule regarding comity
does not apply.

¶31 We therefore conclude that the circuit court mistakenly viewed and
applied the law governing principles of comity to the circumstances of this case.
Accordingly, the court erroneously exercised its discretion when it determined that
principles of comity required dismissal of Hammarback’s independent action.

III. Issue Preclusion

¶32 Alternatively, the Estate argues that we could affirm the circuit
court’s order under the doctrine of issue preclusion. Specifically, the Estate argues
that the October 2023 dismissal of Hammarback’s first Wisconsin action
amounted to a determination that Florida had “exclusive venue.”

¶33 Issue preclusion is “designed to limit the re-litigation of issues that
have been contested in a previous action between the same or different parties.”
Randall v. Felt, 2002 WI App 157, ¶9, 256 Wis. 2d 563, 647 N.W.2d 373 (citation
omitted). “A threshold prerequisite for application of the doctrine, however, is
that in order to be precluded from ‘relitigating’ an issue, a party must have
‘actually litigated’ it previously.” Id. (citation omitted). “An issue is ‘actually
litigated’ when it is ‘properly raised, by the pleadings or otherwise, and is
submitted for determination, and is determined.’” Id. (citation omitted).

¶34 Hammarback first argues that we should not address the Estate’s
issue preclusion argument because it was not raised in the circuit court. She
contends that issue preclusion requires factfinding, see Finch v. Southside
Lincoln-Mercury, Inc., 2004 WI App 110, ¶43, 274 Wis. 2d 719, 685 N.W.2d
154, as well as a discretionary determination regarding “fundamental fairness.”

14
No. 2024AP1673

See Flooring Brokers, Inc. v. Florstar Sales, Inc., 2010 WI App 40, ¶¶6-9, 324
Wis. 2d 196, 781 N.W.2d 248. Hammarback argues that because there is no
factfinding or fundamental fairness determination for us to review, we are
foreclosed from evaluating the Estate’s issue preclusion argument.

¶35 We disagree because “we will usually permit a respondent to employ
any theory or argument on appeal that will allow us to affirm the [circuit] court’s
order, even if not previously raised.” See Finch, 274 Wis. 2d 719, ¶42 Here,
however, we agree with Hammarback’s alternative argument that issue preclusion
simply does not apply. Hammarback’s earlier Wisconsin action was not an
independent action pursuant to FLA. STAT. § 733.705(5), and Hammarback’s
independent action could only arise after Hammarback had filed a claim in Florida
probate court and after the Estate objected to that claim. Both of these steps
occurred after the dismissal of Hammarback’s first Wisconsin action. Thus, the
issues raised in Hammarback’s independent action have never been actually
litigated.

¶36 Moreover, even if the Estate were correct that issue preclusion
applies to a venue determination, the Estate has not identified any record facts or
authority to support its argument that the parties actually litigated in the first
Wisconsin action whether Florida had “exclusive venue.” Thus, we see no basis
for applying the doctrine of issue preclusion.

IV. Claims for Relief

¶37 Having concluded that the circuit court erred by dismissing
Hammarback’s complaint, we now turn to the Estate’s argument that the relief
requested in Hammarback’s complaint goes beyond the scope of an independent
action under FLA. STAT. § 733.705(5). Specifically, the complaint asks the court

15
No. 2024AP1673

to offset Hammarback’s damages against the $190,000 that Hammarback owes
under the note and mortgage and also to issue a declaratory judgment that the note
and mortgage have been paid in full. We begin by noting that § 733.705(5)
expressly permits a claimant to bring an independent action for a declaratory
judgment.

¶38 Regarding offset, the Estate argues that “[t]he unpaid $190,000
Hammarback owes to the … estate is an asset of the estate,” and “only the probate
court has authority to determine if and how this estate asset should be used to pay
creditors.” See Lefkowitz v. Schwartz, 299 So. 3d 549, 554 (Fla. Dist. Ct. App.
2020). The decision in Lefkowitz refers to an order “approving execution or other
process to be levied against property of the estate.” Id. In contrast, offset is a
“common law bar to over-recovery.” McFarland State Bank v. Sherry, 2012 WI
App 4, ¶31, 338 Wis. 2d 462, 809 N.W.2d 58 (2011). This bar stems from “the
common law rule that a creditor is not allowed a total recovery … that is more
than the total debt that is due.” Id., ¶21. The Estate has not developed any
argument to establish that the common law rule of offset is the equivalent of
“execution or other process.”

¶39 At any rate, Hammarback has conceded that “issues of enforcement
of a valid judgment against estate property would necessarily fall to the Florida
probate court.” We therefore see no basis for the Estate’s argument that
Hammarback’s complaint is not consistent with an independent action.

CONCLUSION

¶40 For the foregoing reasons, we conclude that the circuit court erred by
dismissing Hammarback’s complaint. We therefore remand for further
proceedings consistent with this opinion.

16
No. 2024AP1673

By the Court.—Order reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

17