COURT OF APPEALS
DATED AND FILED
July 1, 2008
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
In re the estate of Edwin H. Schultz:
Steven E. Schultz, Stephanie Zimmer and Deborah McFall,
Elsie Schultz, Personal Representative,
from orders and a judgment of the circuit court for
¶1 PER CURIAM. This is a probate dispute between Elsie Schultz and her late husband Edwin’s children from a prior marriage.  The children argue the court erred in awarding Elsie certain gambling winnings. They also argue Edwin’s estate should not have included property Edwin gave his children before his death. A threshold question in this appeal is whether the children’s appeal is timely. We conclude it is not, and dismiss the appeal.
¶2 Edwin and Elsie married in 1978. In
1990, they entered into a post-nuptial agreement. The agreement stated that they would be
governed by the law of
¶3 In 1999, Edwin executed a will that was consistent with the post-nuptial agreement. However, in 2001 Elsie won a $1.45 million casino jackpot. In 2002, Edwin executed a new will purporting to leave half of the gambling winnings to his children. He also gave his children a substantial amount of property classified as his under the marital agreement.
¶4 Edwin died in January 2004, and his estate was probated. In the probate proceeding, the children and Elsie asserted conflicting claims to half of the lottery winnings. In addition, Elsie, as personal representative, attempted to recover property Edwin transferred to his children before his death. The court issued three orders and a judgment relevant to these issues:
(1) A September 23, 2004 decision and order denying admission of the 2002 will to probate and admitting the 1999 will instead on the grounds that the 2002 will was contrary to the marital property agreement.
(2) A February 2, 2006 letter decision concluding Elsie’s gambling winnings were not part of Edwin’s estate.
(3) A February 27, 2007 order including money and certain property in the estate. The court concluded Edwin transferred the money and property to his children in a bad faith attempt to circumvent the agreement.
(4) A November 28, 2007 judgment against the children for $91,000. The judgment was entered after the children refused to turn over property belonging to the estate.
¶5 The children filed a notice of appeal in the circuit court on December 19, 2007. The notice of appeal indicates the children appeal from eleven different record documents, including the four documents mentioned above.
¶6 A notice of appeal must be filed in the circuit court within ninety days of the final judgment or order appealed from. Wis. Stat. § 808.04(1). If a timely notice of appeal is not filed, we do not have jurisdiction over the appeal. Wis. Stat. Rule 809.10(1)(e).
¶7 Only a final judgment or order is appealable as a matter of
Stat. § 808.03(1). A final
judgment or order “disposes of the entire matter in litigation as to one or
more of the parties, whether rendered in an action or special proceeding….”
¶8 Elsie argues each of the probate orders was a final order in a special proceeding. Because the notice of appeal came well over ninety days after the last of those orders, she argues we lack jurisdiction to review them.
¶9 We conclude the orders dated September 23, 2004 and February 27, 2007 were final orders disposing of two special proceedings. The February 2, 2006 letter decision was a nonfinal order in the special proceeding disposed of by the February 27, 2007 order. As a result, to give us jurisdiction over the issues raised in this appeal, the children were required to file timely notices of appeal from the September 23, 2004 and February 27, 2007 orders. Because they did not do so, we lack jurisdiction.
¶10 After briefing in this case, our supreme court decided Sanders
v. Estate of Sanders, 2008 WI 63, __
¶11 When determining whether an order is a final order disposing of
a special proceeding, we first determine the scope of the special proceeding.
¶12 In addition, we also examine the language of the order to be
sure it actually disposes of the entire special proceeding.
¶13 Here, the September 23,
2004 decision and order denying admission of the 2002 will to probate and
admitting the 1999 will concluded exactly the same kind of special proceeding
at issue in Goldstein. See Goldstein, 91
UPON THE FOREGOING, IT IS HEREBY ORDERED, that the Last Will and Testament executed by Edwin Schultz on January 25, 2002, is denied admission to probate.
IT IS FURTHER ORDERED, that the Last Will and Testament executed by Edwin Schultz on November 17, 1999, be and is hereby admitted to probate.
This is an “explicit statement”
disposing of the special proceeding to determine which will to probate; indeed,
it is difficult to imagine what the court could have done to dispose of the proceeding
more explicitly. See Wambolt, 299
¶14 We reach the same conclusion with regard to the February 27, 2007 order including money and certain
property in the inventory. Resolving
doubts in the children’s favor, we conclude both the February 2, 2006 letter
decision concluding Elsie’s gambling winnings were not part of Edwin’s estate
and the February 27, 2007 order were parts of a single special proceeding encompassing
all disputes over what property was part of the estate. See
IT IS ORDERED THAT:
1. All classification of assets in the Inventory is approved and confirmed.
2. The personal representative is directed to proceed with administering the estate consistent with this Order.
This is an “explicit statement”
disposing of the special proceeding over what property was part of the
estate. See Wambolt, 299
¶15 The children argue the November 28, 2007 judgment is the only final judgment or order in this case, and the three earlier orders were nonfinal orders. They argue their timely appeal from the judgment gives us jurisdiction to review these previous nonfinal orders. See Wis. Stat. Rule 809.10(4).
¶16 However, as explained above, the will contest and inventory dispute were distinct special proceedings concluded by final orders. The judgment was entered only after the estate moved for contempt because the children refused to turn over property belonging to the estate. The judgment therefore concluded a different proceeding initiated by the estate in an attempt to recover its property. The children do not argue the contempt proceeding was part of the same special proceeding as the inventory dispute or the will contest, and we are satisfied the contempt proceeding was a different special proceeding.
appeal from a final order in a special proceeding only gives us jurisdiction to
review that order and nonfinal orders in
the same special proceeding. Sanders,
2008 WI 63, __
children also argue Elsie’s position is contrary to Wambolt. However, as explained above, both the September
23, 2004 decision and order and the February 27, 2007 order included “explicit
statement[s]” disposing of those special proceedings as required by Wambolt. See
By the Court.—Appeal dismissed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
 Appellants are Edwin’s only children. For clarity, throughout this opinion we refer to them collectively as the children or Edwin’s children.
children’s brief does not contain any citations to the record, either in the
statement of facts or in the argument section.
We remind counsel that this blatant failure to conform to Wis. Stat. Rule 809.19(1)(d)-(e) is
grounds for sanctions. See Wis.
Stat. Rule 809.83(2). In addition, we may decline to consider
arguments not supported by appropriate citation to the record. State v. Pettit, 171
All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
 The agreement allowed Edwin to leave certain specified items directly to his children. That provision of the agreement is not relevant here.
 A shorter time period applies in certain circumstances. See Wis. Stat. § 808.04.
set out a prospective rule that final orders or judgments should contain an
explicit statement that they are final for purposes of appeal. Wambolt v.
the February 2, 2006 letter decision was
a nonfinal order, to appeal that order the children were required to timely
appeal from the February 27, 2007 order concluding the inventory
proceeding. See Sanders, 2008 WI 63, __