Kimberly Winter v. James Winter

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 13, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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 Nos. 2019AP1374 Cir. Ct. Nos. 2018CV175
2019PR69
2020AP702

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

NO. 2019AP1374

KIMBERLY WINTER,

PLAINTIFF-APPELLANT,

V.

JAMES WINTER,

DEFENDANT-RESPONDENT.
___________________________________________________________________

NO. 2020AP702

IN RE THE ESTATE OF AUGUSTUS POCIUS WINTER:

KIMBERLY WINTER,

APPELLANT,

V.
Nos. 2019AP1374
2020AP702

JAMES WINTER,

RESPONDENT.

APPEAL from an order of the circuit court for Oneida County:
MICHAEL H. BLOOM, Judge. Appeal dismissed.

APPEAL from an order of the circuit court for Oneida County:
MICHAEL H. BLOOM, Judge. Reversed and cause remanded with directions.

Before Stark, P.J., Hruz and Seidl, 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).

¶1 PER CURIAM. 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

1
Kimberly’s appeal in her civil case was assigned case No. 2019AP1374, and her appeal
in her probate case was assigned case No. 2020AP702.
2
Because some of the parties share a surname, we refer to them individually by their
first names.

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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,

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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.

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¶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

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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

3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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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.

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¶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 California court order, the court concluded that issue preclusion barred
Kimberly’s probate claims regarding Augustus’s ownership of the Oneida County
property.4 The court also concluded that it did not need to appoint a personal
representative to bring an action if it would later dismiss that action. The court did
not believe that any further discovery would have an impact on the court’s ruling,
and it therefore denied Kimberly’s petitions for formal and special administration.
Kimberly subsequently appealed the denial of her petitions. Recognizing common
issues between Kimberly’s civil and probate cases, we ordered that the two
appeals be consolidated.

DISCUSSION

¶15 At issue in case No. 2020AP702 is whether the probate court erred
in denying Kimberly’s petitions for formal and special administration by applying
issue preclusion (or claim preclusion) before appointing a personal representative
or special administrator. Resolution of that issue requires us to interpret the
statutes relevant to petitions for formal and special administration and to apply the
statutes to the facts of this case. The circuit court’s interpretation and application
of a statute present questions of law that we review de novo. Bell v. Neugart,
2002 WI App 180, ¶15, 256 Wis. 2d 969, 650 N.W.2d 52. For the reasons that

4
The parties dispute whether the circuit court denied Kimberly’s petitions based on
claim or issue preclusion. For our purposes, the distinction is irrelevant because we conclude that
neither claim preclusion nor issue preclusion was ripe for the court to consider.

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follow, we conclude the probate court erred by failing to appoint a special
administrator and by prematurely considering James’s defenses.

¶16 As relevant to this appeal, WIS. STAT. § 867.07(6) provides that a
court may appoint a special administrator if it appears that: (1) a person has died;
(2) the court would have jurisdiction for the administration of the person’s estate;
(3) a cause of action exists for or against the decedent or the decedent’s estate; and
(4) some act must be performed before letters can be issued to a personal
representative. We conclude that Kimberly has met each of these conditions for
the appointment of a special administrator.

¶17 First, Augustus passed away on August 24, 2010. Second, the
circuit court would have jurisdiction over the administration of a portion of the
Estate because if Kimberly prevails on her claims, Augustus would have owned
the real property in Oneida County at the time of his death. See WIS. STAT.
§ 856.01(2). Third, Kimberly’s petition for special administration contends that a
cause of action exists for the Estate because Kimberly questions the validity of the
quitclaim deed that transferred the Oneida County property from Augustus to
James. Fourth and finally, it appears necessary to prosecute that cause of action
“before letters can be issued to a personal representative” because the Estate
currently has no property to be distributed. As James attested, the Estate has not
been probated in California because “everything [Augustus] owned at death was
already owned by Marion Winter or had previously been transferred to the Winter
Family Trust.” Similarly, a Wisconsin court cannot administer any portion of the
Estate until Kimberly shows that Augustus has property in Wisconsin. See
§ 856.01(2). Thus, a determination must be made regarding the validity of the

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quitclaim deed before letters can be issued to a personal representative, and James
does not argue otherwise.

¶18 James does not address WIS. STAT. § 867.07(6). Instead, he argues
that Kimberly cannot petition for special administration because she “has no claim
against the estate” and “no direct interest in the estate.” James contends that
Augustus’s will distributes Augustus’s estate to the Trust. James further contends
that because Marion is still alive, and she is still the direct beneficiary of the Trust,
Kimberly only has a contingent beneficiary interest in the Trust.

¶19 We disagree and conclude that Kimberly has standing to file a
petition for special administration. Any person who has standing to petition for
the administration of an estate under WIS. STAT. § 856.07 may petition for the
appointment of a special administrator, and the waiting periods under § 856.07 do
not apply. See WIS. STAT. § 867.09. Section 856.07(1) provides that “any person
named in the will to act as personal representative or … any person interested”
may “[p]etition for administration of the estate of a decedent.” Therefore, “any
person named in the will to act as personal representative” may petition for the
appointment of a special administrator. See §§ 856.07(1) and 867.09.

¶20 As discussed earlier, Augustus named Marion as the executor of his
estate. Because Marion cannot serve as the executor due to her incapacity,
however, Kimberly and James are the successor co-executors named in
Augustus’s will. Although Kimberly was not technically named as a “personal
representative,” we do not discern any difference between a person named as an
“executor” under Augustus’s will and a “person named in the will to act as
personal representative.” Under Augustus’s will, a co-executor “shall have all of
the powers necessary to deal with [Augustus’s] property,” including “the

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administration of [Augustus’s] estate.” Likewise, under Wisconsin law, a
“personal representative” is the person who administers a decedent’s estate. See
WIS. STAT. § 857.03(1). Because Kimberly was named as a co-executor of
Augustus’s will, she is a “person named in the will to act as personal
representative,” and, therefore, she has standing to petition for special
administration under WIS. STAT. § 867.07(6).

¶21 James also argues that if the Estate had any claim, the Trust would
own that claim. James argues that under California law, co-trustees must act
unanimously, and therefore Kimberly cannot petition for formal or special
administration without his consent. He acknowledges, however, that the Estate
has not been probated; therefore, no claim has been distributed from the Estate to
the Trust. Moreover, Kimberly also filed the petition for special administration as
the co-personal representative of the Estate, not as the co-trustee of the Trust.
James fails to cite any legal authority that a co-executor or a co-personal
representative must act in concert in this kind of situation. It seems axiomatic that,
in circumstances such as here, a co-executor can petition for special administration
of an estate and pursue a claim against the other executor in his or her personal
capacity without obtaining the other executor’s consent.

¶22 In a California case involving analogous facts, an executor filed an
action against her co-executor brother to “obtain a judgment canceling and
declaring null and void a certain written instrument … purporting to be a deed
executed by the deceased, and conveying to the defendant herein a certain piece or
parcel of land, and decreeing that said property belongs to said estate.” Stohr v.
Stohr, 82 P. 777, 778 (Cal. 1905). On appeal, the defendant co-executor argued
that the judgment was erroneous based on “the principle that one executor cannot

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maintain an action against his co-executor for exclusive possession of property of
the estate.” Id. The Supreme Court of California rejected that argument and
explained that

this principle does not apply to the case at bar. The
plaintiff sued the defendant in his individual capacity, and
this phase of the case was not changed by the fact that
defendant afterwards became an executor. The action is
not by one executor to recover from a co-executor
exclusive possession of property admitted by both to be
property of the estate. It is an action by an execut[or] to
recover what she claims to be property of the estate from
the defendant, who asserts that such property belongs to
him in his individual capacity, and is not an asset of the
estate. The plaintiff is the proper person to maintain the
action; and if the alleged cause of action is well grounded
and the land in question ought to be decreed to be the
property of the estate, the defendant cannot avoid a trial of
the merits and hold onto the property upon the ground that
because he was one of the executors he cannot be sued.

Id.

¶23 Similar to the plaintiff in Stohr, Kimberly seeks to file an action on
behalf of the Estate to obtain real property that James purportedly acquired in his
personal capacity. James has a personal interest in keeping the Oneida County
property for himself, rather than allowing the property to pass to the Estate. Thus,
it would be absurd to require Kimberly to obtain James’s consent in this situation.
Kimberly’s status as a co-executor does not prevent her from petitioning for
special administration of the Estate.

¶24 James next contends that the circuit court had discretion to deny
Kimberly’s petitions under WIS. STAT. § 868.01(5), based on the factors discussed
in Dennis v. Bayfield County, 161 Wis. 2d 644, 652-53, 468 N.W.2d 736
(Ct. App. 1991). This argument fails because § 868.01(5) governs applications to

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open an original probate, but Kimberly has not sought to open an original probate
of the Estate. Instead, she seeks to first determine the validity of the quitclaim
deed. The need for an original probate in either California or, as an ancillary
matter in Wisconsin, only arises if Kimberly prevails on her claims regarding the
quitclaim deed.5

¶25 Finally, we must determine whether the circuit court could consider
claim or issue preclusion before appointing a special administrator. Kimberly
argues that issue preclusion was not ripe for the court to consider because no claim
had been asserted. “The doctrine of ripeness requires that, for an action to be
justiciable, the facts of a case must be sufficiently developed to allow a conclusive
adjudication.” Carlin Lake Ass’n v. Carlin Club Props., LLC, 2019 WI App 24,
¶35, 387 Wis. 2d 640, 929 N.W.2d 228. “The basic rationale of the ripeness
doctrine is to prevent the courts through the avoidance of premature adjudication
from entangling themselves in abstract disagreements over administrative or
legislative policies.” Tooley v. O’Connell, 77 Wis. 2d 422, 439, 253 N.W.2d 335
(1977).

5
The circuit court may ultimately exercise its discretion and deny a request to open an
original probate. See Dennis v. Bayfield Cnty., 161 Wis. 2d 644, 652-53, 468 N.W.2d 736
(Ct. App. 1991). Such a possibility, however, does not preclude a special administrator from
contesting the validity of the quitclaim deed and obtaining a decision on the matter. Moreover,
even if the court could consider the factors discussed in Dennis, the “relative rights of the parties
in interest” in this case are strong. See id. at 653. A Wisconsin court must determine the validity
of the deed and determine proper ownership of the Oneida County property. See Hayes v. Gulf
Oil Corp., 821 F.2d 285, 287 (5th Cir. 1987) (“A local action involving real property can only be
brought within the territorial boundaries of the state where the land is located.”); Bigio v.
Coca-Cola Co., 239 F.3d 440, 449-50 (2d Cir. 2000) (“Under the local action doctrine, courts
may not exercise jurisdiction over any ‘local’ action involving real property unless the property at
issue is found within the territorial boundaries of the state where the court is sitting.”).

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¶26 Here, the circuit court prematurely concluded that Kimberly’s
potential claims on behalf of the Estate were barred by claim or issue preclusion.
Kimberly’s petition for special administration sought the appointment of a special
administrator to file “a lawsuit to determine the validity of that certain deed
purportedly conveying a parcel of real estate located in Oneida County from the
decedent as grantor to James Winter as grantee.” Kimberly did not have an
opportunity to make any factual allegations regarding the lawsuit, nor did she
assert any specific claims that the special administrator would file.

¶27 Issue preclusion requires a court to consider whether the issue or fact
was actually litigated and determined in the prior proceeding by a valid judgment
in a previous action. See Munger v. Seehafer, 2016 WI App 89, ¶60, 372 Wis. 2d
749, 890 N.W.2d 22. Similarly, claim preclusion requires a court to consider
whether an identity between the causes of action in the two suits exists. Northern
States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995).
Kimberly has a right to support her positions in regard to these questions.
WISCONSIN STAT. § 867.07(6), however, does not require that a petition prove that
an issue or fact was not litigated in a previous action, nor must it prove a lack of
identity between causes of action. In this case, without appointing a special
administrator to first file a claim and make factual allegations supporting the
claim, the circuit court could not resolve these issues. Indeed, the court did not
analyze these requirements for either issue or claim preclusion.

¶28 James argues that claim preclusion was ripe for the circuit court to
consider because Kimberly had five years to litigate and investigate any claims
and issues in the California litigation and, therefore, she has no right to discovery
in her Wisconsin action. Relying on Kruckenberg v. Harvey, 2005 WI 43, ¶62,

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279 Wis. 2d 520, 694 N.W.2d 879, James also suggests that claim preclusion is
always ripe for a court to consider because a court does not need to engage in a
fundamental fairness analysis when considering claim preclusion.

¶29 We reject James’s arguments. Even if we could assume that
Kimberly had an opportunity to investigate and contest the validity of the
quitclaim deed in the California litigation, those facts are not relevant to
determining whether claim or issue preclusion were ripe for the Wisconsin circuit
court to consider. Without first allowing a special administrator to make factual
allegations and undertake any necessary discovery, the court lacked the necessary
facts to analyze whether issue or claim preclusion applied. Moreover, although
claim preclusion does not require a fundamental fairness analysis, see
Kruckenberg, 279 Wis. 2d 520, ¶62, Kruckenberg does not stand for the
proposition that claim preclusion is always ripe for a circuit court to consider.

¶30 We conclude that claim and issue preclusion were not ripe for the
circuit court to consider. Therefore, we reverse the court’s decision to deny
Kimberly’s petition for special administration and remand for the court to appoint
a special administrator.6 James may raise defenses after the special administrator
has filed a claim.

¶31 Because we reverse the circuit court’s decision in Kimberly’s
probate case for the reasons stated herein, Kimberly’s appeal in her civil case is
moot. “[A] case is moot when a determination is sought upon some matter which,

6
Because we agree that issue and claim preclusion were not ripe for the circuit court to
consider, we do not address Kimberly’s other arguments regarding the circuit court’s competency
to consider issue preclusion or whether issue preclusion applies in this case.

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when rendered, cannot have any practical legal effect upon a then existing
controversy.” Milwaukee Police Ass’n v. Milwaukee, 92 Wis. 2d 175, 183, 285
N.W.2d 133 (1979). Once appointed, a special administrator may file an action
contesting the validity of the quitclaim deed that transferred the Oneida County
property to James. Kimberly’s civil case sought only to contest the validity of the
quitclaim deed; therefore, her civil case would be duplicative and would have no
practical legal effect upon the controversy. Given that Kimberly’s civil appeal is
moot, we dismiss the appeal in her civil case.

By the Court.—Appeal dismissed; order reversed and cause
remanded with directions.

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

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