In re Estate of Gadash

COLORADO COURT OF APPEALS 2017COA54

Court of Appeals No. 16CA0388
Prowers County District Court No. 15PR30000
Honorable Douglas A. Tallman, Judge
Honorable M. Jon Kolomitz, Judge

In re the Estate of Paul J. Gadash, deceased.

Lorella Gadash,

Petitioner-Appellant,

v.

Estate of Paul J. Gadash by and through its Personal Representative, Linda
Rose,

Appellee.

APPEAL DISMISSED IN PART
AND ORDER AFFIRMED

Division V
Opinion by JUDGE ROMÁN
Booras and Fox, JJ., concur

Announced April 20, 2017

Mark S. Davis, Lamar, Colorado, for Petitioner-Appellant

The Law Offices of David S. Anderson, David Anderson, Greeley, Colorado, for
Appellee
¶1 In this probate action, Lorella Gadash (Mrs. Gadash) appeals

the probate court’s orders barring her creditor’s claim for services

rendered to her husband, Paul J. Gadash (Mr. Gadash), and

denying her petition for spouse’s elective share in favor of the Estate

of Paul J. Gadash, by and through its personal representative,

Linda Rose. We conclude that (1) Mrs. Gadash failed to timely

appeal the final order barring her creditor’s claim, and (2) the

probate court properly considered Mr. and Mrs. Gadash’s second

marital agreement in denying Mrs. Gadash’s petition for spouse’s

elective share. Accordingly, we dismiss the appeal in part and

affirm the order of the probate court.

I. Background

¶2 The day before their 1975 wedding, Mr. and Mrs. Gadash

executed an antenuptial agreement (the first marital agreement).

Under the terms of the first marital agreement, each spouse waived

any right to the other’s pre-marital property. Specifically, Mr.

Gadash owned two commercial properties in Kansas.

¶3 During their first year of marriage, Mr. and Mrs. Gadash

jointly acquired a hotel. In 1978, they entered into a second marital

agreement. Under the second marital agreement, Mrs. Gadash

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waived her right to an elective share of Mr. Gadash’s estate and any

benefit that would pass to her from it. Mr. Gadash also waived the

right to an elective share of one-half of Mrs. Gadash’s estate, but

only as to property given to Mrs. Gadash by her parents.1

¶4 After the second marital agreement, Mr. Gadash liquidated his

Kansas properties, and he and Mrs. Gadash jointly acquired a

horse property, lots adjacent to their hotel property, and a

residential property. Mr. Gadash also separately bought and sold a

different motel. Mrs. Gadash received a home from her parents.

¶5 In 2001, Mr. and Mrs. Gadash entered into a third marital

agreement. In this agreement, they mutually waived rights to

certain real property listed in two exhibits attached to the

agreement. Of note, the third marital agreement specifically

incorporated the terms of the first marital agreement but was silent

as to the second marital agreement.

¶6 After the third marital agreement, Mr. and Mrs. Gadash re-

allocated the properties held by each of them. Mr. Gadash

conveyed the lots adjacent to the hotel to Mrs. Gadash and

1Mrs. Gadash anticipated a testamentary gift from a trust
established by her parents.

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purchased three additional commercial properties. Mrs. Gadash

conveyed the jointly held residential property and hotel to Mr.

Gadash and retained the residential property given to her by her

parents.

¶7 In 2008, Mr. Gadash executed his last will and testament. In

it, he left all of his probate estate to his daughter, who is also the

personal representative of the estate. He also left a $2000 gift to

Mrs. Gadash. Mrs. Gadash executed a will in 2014, leaving none of

her probate estate to Mr. Gadash.

¶8 On December 31, 2014, Mr. Gadash died and his will was

admitted into probate in an unsupervised administration of estate,

meaning “only the barest minimum of procedure is required and no

hearings are held, unless warranted.” 24 Catherine Anne Seal,

Colorado Practice Series, Elder Law § 16:2, Westlaw (database

updated Nov. 2016).

¶9 On March 4, 2015, Mrs. Gadash filed a petition for spouse’s

elective share of Mr. Gadash’s estate. The petition was filed under

the case number governing the administration of Mr. Gadash’s

estate. Notwithstanding the terms of the will, in her petition, Mrs.

Gadash argued that because Mr. Gadash’s will provided no gift to

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Mrs. Gadash, under section 15-11-202, C.R.S. 2016, she was

entitled to elect an amount equal to fifty percent of the value of the

marital property portion of Mr. Gadash’s estate. She further alleged

that the second marital agreement was not controlling over Mr.

Gadash’s estate.

¶ 10 On the same day, Mrs. Gadash separately filed a creditor’s

claim against the personal representative, in which she sought

compensation for end-of-life services. In her creditor’s claim, Mrs.

Gadash argued that she should be compensated out of Mr.

Gadash’s estate for providing twenty-four-hour-a-day care to Mr.

Gadash for the year and a half preceding his death. Mrs. Gadash’s

creditor’s claim did not reference the petition for spouse’s elective

share. It did, however, acknowledge the existence of marital

agreements precluding her from taking under the estate of Mr.

Gadash.

¶ 11 On September 24, 2015, the probate court ruled that Mrs.

Gadash’s creditor’s claim was barred for failure to protest the

personal representative’s notice of disallowance before the statutory

deadline. Separately, on January 19, 2016, the probate court

denied Mrs. Gadash’s petition for spouse’s elective share.

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¶ 12 On March 4, 2016, Mrs. Gadash filed a notice of appeal,

challenging the probate court’s rulings against her on both the

creditor’s claim and petition for spouse’s elective share.

II. Discussion

¶ 13 We first address Mrs. Gadash’s creditor’s claim; then, we turn

to the petition for spouse’s elective share.

A. Creditor’s Claim

¶ 14 The personal representative contends that the probate court’s

order barring Mrs. Gadash’s creditor’s claim was a final order,

which Mrs. Gadash failed to timely appeal. Mrs. Gadash asserts

that the order barring her creditor’s claim did not become final until

the probate court ruled on her petition for spouse’s elective share,

and, thus, her appeal was timely. Because we conclude that Mrs.

Gadash’s creditor’s claim was governed by a proceeding

independent of her petition for spouse’s elective share, we agree

with the personal representative.2 Accordingly, we lack jurisdiction

2The personal representative also asserts that the probate court
properly deemed Mrs. Gadash’s creditor’s claim barred. In light of
our determination that we lack jurisdiction to review that order, we
do not reach this alternative argument.

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to consider the probate court’s order barring Mrs. Gadash’s

creditor’s claim.

1. Standards

¶ 15 The existence of subject matter jurisdiction is a question of

law that we review de novo. City of Boulder v. Pub. Serv. Co. of

Colo., 996 P.2d 198, 203 (Colo. App. 1999).

¶ 16 “The timely filing of a notice of appeal is a jurisdictional

prerequisite to appellate review.” In re Marriage of Farr, 228 P.3d

267, 268 (Colo. App. 2010) (citation omitted). The notice of appeal

must be filed within forty-nine days of the entry of a final order.

C.A.R. 4(a).

2. Jurisdiction

¶ 17 Resolution of the jurisdictional question in this case requires

us to determine (a) when an order of the probate court is final for

purposes of timely appeal, and the related question of (b) what

constitutes a discrete proceeding. See Scott v. Scott, 136 P.3d 892,

894 (Colo. 2006).

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a. When is a Probate Order Final?

¶ 18 In Scott v. Scott, our supreme court held:

[A]n order of the probate court is final if it ends
the particular action in which it is entered and
leaves nothing further for the court
pronouncing it to do in order to completely
determine the rights of the parties as to that
proceeding.

Id. at 896 (emphasis added) (noting that “the same rules of finality

apply in probate cases as in other civil cases”).

¶ 19 Thus, the finality of a probate order hinges on the

determination of rights within the underlying proceeding. See id.

We turn next to what constitutes a probate proceeding. Id.

b. What is a Probate Proceeding?

¶ 20 The probate code’s definition of ‘proceeding’ provides some

guidance. Id. According to the statute entitled “Scope of

Proceedings,” in an unsupervised administration, “[e]ach proceeding

before the court . . . is independent of any other proceeding

involving the same estate.” § 15-12-107(1)(a), C.R.S. 2016. “Thus,

the code instructs that the unsupervised administration of an

estate may involve multiple proceedings, that a petition initiates an

independent proceeding and defines its scope, and that a single

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proceeding may dispose of multiple claims.” Scott, 136 P.3d at 896

(discussing section 15-12-107(1)(a), (b)).

¶ 21 In addition, the Scott court pointed to a comment to section

3-107 of the Uniform Probate Code (UPC), after which the Colorado

Probate Code is modeled. Id. at 896. “When resort to the judge is

necessary or desirable to resolve a dispute or to gain protection, the

scope of the proceeding if not otherwise prescribed by the Code is

framed by the petition.” UPC § 3-107 cmt. (Unif. Law Comm’n

2010).

¶ 22 After setting out this authority, the Scott court announced:

[O]nce a petition is filed, it defines a
proceeding. Further pleadings relating to the
same subject matter, whether labeled motions
or petitions, are part of the same proceeding.
When the subject matter of two petitions
overlap, it would generally be appropriate to
consider both petitions as belonging to the
same proceeding.

Scott, 136 P.3d at 897 (quoting In re Estate of Newalla, 837 P.2d

1373, 1377 (N.M. Ct. App. 1992)).

i. Application in Scott v. Scott

¶ 23 In Scott, the supreme court found that two petitions were part

of a single proceeding because they “involved the same subject

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matter.” Id. at 898. Specifically, petitioner’s initial filing raised

three claims, one of which requested that the probate court refuse

to admit a codicil to probate. Id. Respondent objected, arguing that

there was no basis to exclude the codicil. Id. at 894. Respondent

also filed a separate petition for formal probate of the codicil and

appointment of a personal representative. Id. at 893-94. The

probate court granted a motion for partial summary judgment

declaring the codicil invalid. Id.

¶ 24 The question in Scott was whether the probate court’s order

granting partial summary judgment on the codicil issue was a final

appealable order. See id. The supreme court determined that,

because it “adjudicated fewer than all the parties’ claims, it was not

a final judgment.” Id. at 894. It did so based on the following

reasoning.

¶ 25 First, the initial petition “initiated the proceeding and defined

its scope.” Id. at 898. In Scott, the first petition raised three claims.

¶ 26 Second, all subsequent pleadings that related to the claims set

forth in the initial petition, including those labeled “motions or

petitions,” were deemed part of the same proceeding. Id. at 897

(citation omitted). Because respondent’s petition “involved the same

9
subject matter” as petitioner’s initial petition — namely, whether

the codicil should be admitted to probate — it was part of the same

proceeding. Id. at 898.

¶ 27 Third, because the probate court’s order did not resolve all of

the claims in the initial petition, it was not final. Id.

ii. Application of Scott to this Case

¶ 28 Applying Scott here requires us to reach a different result.

¶ 29 First, Mrs. Gadash’s creditor’s claim and petition for spouse’s

elective share were filed separately, and raised two distinct claims.

These claims were subject to different statutory requirements and

alleged different facts:

 The first pleading in this case was a petition for spouse’s

elective share of Mr. Gadash’s estate, pursuant to section

15-11-202. Under section 15-11-202(1), “[t]he surviving

spouse of a decedent who dies domiciled in this state has

a right of election . . . to take an elective-share amount

equal to fifty percent of the value of the marital-property

portion of the augmented estate.” Mrs. Gadash’s petition

for spouse’s elective share alleged that she was left out of

Mr. Gadash’s will.

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 Separately, Mrs. Gadash filed a creditor’s claim seeking

compensation for rendering end-of-life services to Mr.

Gadash, pursuant to section 15-12-801, C.R.S. 2016.

Under section 15-12-801, “[t]he decedent’s creditors are

entitled, within the time limits imposed by the controlling

state law, to have their claims satisfied out of the

decedent’s probate estate.” Restatement (Third) of Prop.:

Wills and Donative Transfers § 1.1 cmt. f (Am. Law. Inst.

1999). Mrs. Gadash’s creditor’s claim alleged that Mr.

Gadash lived at home under Mrs. Gadash’s twenty-four-

hour-a-day care for a year and a half before his death

and comparable care would have cost the estate $12 per

hour. Mrs. Gadash therefore requested $5000 per month

retroactive to the first date of services rendered.

¶ 30 Second, Mrs. Gadash’s creditor’s claim and petition for

spouse’s elective share neither overlapped nor involved the same

subject matter. See Scott, 136 P.3d at 897. In Scott, the second

petition responded directly to the first petition; whereas, in this

case, the subject matters of Mrs. Gadash’s claims are unrelated.

Cf. In re Estate of Scott, 151 P.3d 642, 645 (Colo. App. 2006)

11
(holding a petition part of the same proceeding as an earlier petition

because the former “relate[d] to the same set of claims as those” in

the latter).

¶ 31 Third, the probate court’s order barring Mrs. Gadash’s

creditor’s claim disposed of everything raised in that filing. See

Scott, 136 P.3d at 898.

¶ 32 Accordingly, we conclude that Mrs. Gadash’s petition for

spouse’s elective share and creditor’s claim initiated independent

proceedings. Therefore, as to the discrete proceeding governing

Mrs. Gadash’s creditor’s claim, the probate court’s order was final.3

¶ 33 We recognize that Mrs. Gadash’s petition for spouse’s elective

share was filed “in the alternative of receiving compensation for

services rendered pursuant to her creditor’s claim,” and that the

two pleadings bore the same case number. Nonetheless, Mrs.

3 Mrs. Gadash argues that the probate court’s order on her
creditor’s claim was not certified final under C.R.C.P. 54(b). Indeed,
the Scott court observed that, if there is any question as to a
probate order’s finality, “a party may request that the probate court
certify [the] order as final for appeal pursuant to C.R.C.P. 54(b).”
Scott v. Scott, 136 P.3d 892, 897 (Colo. 2006). Such certification
was not necessary here, however, because the order barring Mrs.
Gadash’s creditor’s claim disposed of “all the claims presented in
[the] proceeding.” Id.

12
Gadash’s claims were not “related.” Id. at 897. Likewise, the case

number is not dispositive of the scope of the proceeding.4 See

Estate of Scott, 151 P.3d at 644 (noting that the supreme court in

Scott did not intend “to enable parties to obtain a ‘final, appealable

judgment’ by filing a new petition under a new case number”).

¶ 34 To be sure, the supreme court referenced the fact that the

petitions in Scott were filed under the same case number. 136 P.3d

at 898. But it did so only after concluding that, unlike here, the

second petition “was responsive to” the first. Id. A contrary

determination — that all claims against an estate are “related”

because they are filed under the same case number — would violate

Scott’s determination that “there can be more than one proceeding

in the administration of a single estate.” Estate of Scott, 151 P.3d at

644.

¶ 35 Moreover, the “legal effect of the order” barring Mrs. Gadash’s

creditor’s claim supports our conclusion. Luster v. Brinkman, 250

P.3d 664, 666 (Colo. App. 2010) (directing courts to look to the legal

4The petition for spouse’s elective share and the creditor’s claim
bore the same case number because they were filed within the
administration of a single estate.

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effect of an order, “rather than its form,” in determining finality).

By barring Mrs. Gadash from bringing a creditor’s claim, the

probate court’s order “dispose[d] of [that] particular action and

prevent[ed] further proceedings as effectually as would any formal

judgment.” Id. (citation omitted); cf. Estate of Scott, 151 P.3d at 645

(holding a probate order was not final because it “did not finally

conclude any substantive matter and [had] no preclusive effect”).

¶ 36 For these reasons, we hold that Mrs. Gadash’s creditor’s claim

initiated a proceeding independent of the petition for spouse’s

elective share, and that the probate court’s order barring her

creditor’s claim “completely determine[d] the rights of the parties as

to that proceeding.” Scott, 136 P.3d at 896. Because Mrs. Gadash

did not timely appeal the probate court’s final order barring her

creditor’s claim, we lack jurisdiction to review it. Marriage of Farr,

228 P.3d at 268.

¶ 37 We therefore dismiss this portion of the appeal.

B. Petition for Spouse’s Elective Share

¶ 38 Mrs. Gadash also contends that the probate court erred when

it considered the terms of the second marital agreement in denying

her petition for spouse’s elective share. Specifically, she argues that

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the second marital agreement was rendered void by the third

marital agreement. We are not persuaded.

1. Standard of Review

¶ 39 The interpretation of a contract, including whether an

unambiguous contract is fully integrated, is a question of law that

we review de novo. Ad Two, Inc. v. City & Cty. of Denver ex rel.

Manager of Aviation, 9 P.3d 373, 376 (Colo. 2000); Midwest Builder

Distrib., Inc. v. Lord & Essex, Inc., 891 N.E.2d 1, 18 (Ill. App. Ct.

2007); see also Colowyo Coal Co. v. City of Colorado Springs, 879

P.2d 438, 443 (Colo. App. 1994) (“When the evidence of an

agreement consists of documents, as here, the determination of

their effect is a matter of law.”) (citation omitted).

¶ 40 Marriage agreements should be construed and treated in the

same manner as other contracts, and, in construing them, we must

give effect to the parties’ intent. In re Marriage of Fiffe, 140 P.3d

160, 163 (Colo. App. 2005). Where the contract’s terms are

unambiguous, we determine the parties’ intent from the language of

the instrument itself. Ad Two, Inc., 9 P.3d at 376. We interpret

contracts based on the “plain and generally accepted meaning of

the words employed.” Id.

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2. Analysis

¶ 41 Mrs. Gadash asserts that the following paragraph in the third

marital agreement was a merger or integration clause, which

rendered the second marital agreement void:5

The parties agree that this agreement shall
only apply to those properties described in
Exhibits “A” and “B” and shall not effect [sic]
any other property or rights they may have
unless those rights were first addressed in the
[first marital agreement].

¶ 42 We agree with the personal representative that this is not a

merger or integration clause.

¶ 43 A merger or integration clause is a statement “that a written

contract is integrated, that all conditions, promises, or

representations are contained in the writing, and that the parties

are not to be bound except by the writing . . . .” 11 Williston on

Contracts § 33:23 (4th ed.) Westlaw (database updated May 2016).

¶ 44 Parties may use a merger or integration clause to “substitute

an entirely new contract for a previous one, particularly where the

5 The personal representative asserts Mrs. Gadash did not preserve
this argument because she did not raise it at the trial level. On our
review of Mrs. Gadash’s pre-trial brief, however, we conclude this
argument was preserved. Thus, we consider it.

16
modified or new contract is in writing and is valid in all other

respects.” B-S Steel of Kan., Inc. v. Tex. Indus., Inc., 439 F.3d 653,

661 (10th Cir. 2006) (finding an earlier contract was substituted

where a later contract contained an integration clause); In re

Marriage of Young, 682 P.2d 1233, 1236 (Colo. App. 1984) (“Those

who are qualified to make an antenuptial or other contract are

likewise qualified . . . to unmake the contract all together, or to

substitute a new contract . . . .”) (citation omitted). A “binding

integrated agreement discharges” inconsistent prior agreements.

Restatement (Second) of Contracts § 215 cmt. a (Am. Law Inst.

1981).

¶ 45 Here, the third marital agreement contains no language

indicating that it constituted the entire agreement between the

parties with respect to its subject matter. Cf. Nelson v. Elway, 908

P.2d 102, 107 & n.1 (Colo. 1995) (finding a “plain[] and

unambiguous[]” merger clause where an agreement stated: “This

Agreement constitutes the entire Agreement between the parties

pertaining to the subject matter contained herein, and supersedes

all prior agreements, representations and understandings of the

parties”); cf. In re Centrix Fin., LLC, 434 B.R. 880, 885 (Bankr. D.

17
Colo. 2010) (“This Agreement, including any documents referred to

herein and attached hereto, constitutes the entire agreement

between the parties with respect to its subject matter and

supersedes all prior representations, understanding or agreements

between the parties.”).

¶ 46 Indeed, language in the third marital agreement expressly

limited its scope to “only . . . those properties described” in the

exhibits attached to the third marital agreement. It said nothing

about the already existing document pertaining to the same general

subject matter, nor did it purport to supersede the second marital

agreement. See Colowyo Coal Co., 879 P.2d at 443 (holding an

agreement was not nullified where “[n]othing in the plain language

of the document indicate[d] an intention to substitute the

[subsequent] agreement for the original contract”); see also Hill v.

Ricoh Ams. Corp., 603 F.3d 766, 778 (10th Cir. 2010) (holding that

a subsequent agreement did not supersede a prior agreement where

the former did “not explicitly state that [the prior agreement was]

nullified . . . . [n]or [was] nullification implicit” because the

subsequent agreement failed to mention matters discussed in the

prior agreement) (citation omitted).

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¶ 47 Moreover, the second and third marital agreements govern

distinct property. Thus, they are independently enforceable and

can be given full force and effect without contradicting one

another.6 Mrs. Gadash can be denied a share of Mr. Gadash’s

estate, pursuant to the second marital agreement, while also

waiving rights to the distinct real property listed in the exhibits

attached to the third marital agreement.

¶ 48 Under these facts, because the third marital agreement

contains no merger or integration clause and does not contradict

the terms of the second marital agreement, we conclude it does not

supersede the second marital agreement.7

6 In order for a subsequent contract to implicitly supersede an
earlier one, the two agreements must cover the same subject matter
and be inconsistent with one another. Compare Coop. Refinery
Ass’n v. Consumers Pub. Power Dist., 190 F.2d 852, 856 (8th Cir.
1951) (“A subsequent contract completely covering the same
subject-matter, and made by the same parties, as an earlier
agreement, but containing terms inconsistent with the former
contract, so that the two cannot stand together . . . is substituted
for the earlier contract.”), with NorAm Drilling Co. v. E & Pco Int’l,
LLC, 178 So. 3d 1061, 1068 (La. Ct. App. 2015) (“A letter agreement
alters only those terms of the original agreement to which it refers,
leaving intact any unmentioned portions of the original agreement
that are not inconsistent with the modification.”).
7 We reject Mrs. Gadash’s argument that, by failing to incorporate

the second marital agreement by reference, the third marital

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¶ 49 We therefore agree with the district court that nothing

indicates Mr. and Mrs. Gadash mutually intended for the third

marital agreement to render the second marital agreement void.

III. Conclusion

¶ 50 The appeal is dismissed in part, and the order is affirmed.

JUDGE BOORAS and JUDGE FOX concur.

agreement impliedly revoked the second marital agreement. This
argument is premised on Mrs. Gadash’s contention that the third
marital agreement contained a merger or integration clause.
Because we conclude the third marital agreement did not integrate
or merge with the second marital agreement, we reject Mrs.
Gadash’s related argument as to incorporation by reference.

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