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COURT OF APPEALS DECISION DATED AND RELEASED October 12, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0604
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
MARY FREDETTE,
Plaintiff-Appellant,
v.
WOOD COUNTY NATIONAL
BANK,
WOOD COUNTY TRUST
COMPANY,
DIANA PELOT, PERSONAL
REPRESENTATIVE,
ESTATE OF GEORGE
PELOT, SR.,
CORPORATIONS 1 THROUGH
20,
DOES 2 THROUGH 20,
Defendants-Respondents.
APPEAL from judgments of
the circuit court for Wood County:
EDWARD F. ZAPPEN, JR., Judge. Affirmed
and cause remanded with directions.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER CURIAM. This appeal represents this court's second
visit to the Estate of Frank Godon. We
previously rejected Mary Fredette's objection to various rulings of the probate
court and affirmed the final probate judgment.
Fredette v. Wood County Trust Company, No. 94-0486, (Wis.
Ct. App. September 7, 1995). In this
appeal, we affirm judgments dismissing Fredette's complaint against the initial
and successor personal representatives of the Frank Godon estate. We also affirm the trial court's award of
costs and attorney fees under § 814.025, Stats.
Fredette was a residual
beneficiary under Frank Godon's will.
Fredette actively disputed several of the rulings made by the court in
the probate proceedings. Fredette took
issue with the inventory of Frank's estate, the disposition of proceeds from a
farm auction, and the settlement of a personal injury claim against the
estate. The probate court ruled against
Fredette, and this court affirmed.
After the final judgment
in the probate matter was entered, Fredette commenced this action. In her complaint, Fredette alleged that
George Pelot, Sr., while acting as personal representative of Frank's estate,
converted assets from Frank's estate to the estate of George Godon, Frank's
brother.[1] Fredette also alleged that the successor
personal representative, the Wood County Trust Company,[2]
breached its fiduciary duty to Frank's estate by not objecting to the
conversion; that the trust company improperly transferred a parcel of real
estate in settlement of the personal injury claim; and that the trust company
was improperly appointed successor personal representative. After ruling that all of Fredette's
allegations had been made and rejected in the probate proceedings, the trial
court dismissed the complaint. The
court also ruled that Fredette's complaint was frivolous under § 814.025, Stats., and awarded costs and attorney
fees to the defendants.
Before examining the
factual aspects of Fredette's causes of action, we address Fredette's argument
that the circuit court that presided over the probate of Frank's estate lacked
the authority to make the rulings that she now attempts to relitigate. Fredette cites to cases which pre-date the
1978 court reorganization. See e.g.,
Gerlach v. Thieme, 58 Wis.2d 113, 205 N.W.2d 779 (1973). The limited jurisdiction formerly possessed
by a county court handling a probate matter was removed in court
reorganization. Under § 753.03, Stats., a circuit court has general
jurisdiction "to hear and determine ... all civil and criminal actions ...
and they have all powers, ... necessary to the full and complete jurisdiction
of the causes and parties and the full and complete administration of justice,
... ." The circuit court had the
authority to rule on disputed issues that arose in the course of the probate
proceeding.
Issue Preclusion
Whether the trial court correctly
dismissed Fredette's complaint presents a question of law that this court
reviews without deference to the trial court.
See Lindas v. Cady, 183 Wis.2d 547, 552, 515 N.W.2d
458, 460 (1994) (the application of preclusion doctrines to a given set of
facts is a question of law). Under the principle of issue preclusion, a party
cannot relitigate issues that were actually litigated in a previous
action. Id. at 558, 515
N.W.2d at 463. Presented with an issue
preclusion argument, a court should consider a series of factors to determine
whether issue preclusion may be equitably applied. Id. at 560-61, 515 N.W.2d at 464. Those factors include:
(1)
could the party against whom preclusion is sought, as a matter of law, have
obtained judicial review of the judgment; (2) is the question one of law that
involves two distinct claims or intervening contextual shifts in the law; (3)
do significant differences in the quality or extensiveness of proceedings
between the two courts warrant relitigation of the issue; (4) have the burdens
of persuasion shifted such that the party seeking preclusion had a lower burden
of persuasion in the first trial than in the second; or (5) are matters of
public policy and individual circumstances involved that would render the application
of collateral estoppel to be fundamentally unfair, including inadequate
opportunity or incentive to obtain a full and fair adjudication in the initial
action.
Id. at
561, 515 N.W.2d at 464, quoting Michelle T. v. Crozier,
173 Wis.2d 681, 689, 495 N.W.2d 327, 330-31 (1993).
After consideration of
those factors, we conclude that issue preclusion defeats Fredette's complaint.
A. Conversion
In the probate
proceeding, Fredette challenged the disposition of proceeds of an auction at
which property found on Frank Godon's farm was sold. Both Frank and his brother George had been farmers, and property
belonging to both men was found on the farm.
At an evidentiary hearing, Fredette challenged the inventory submitted
in Frank's estate and argued that proceeds attributed to George's property
should have been attributed to Frank.
At the conclusion of the hearing, Fredette's counsel conceded that the
evidence supported the disposition of property between the brothers. The court then approved the inventory
submitted by Pelot, then-personal representative of Frank's estate.
Fredette argues that
Pelot "converted" money from Frank's estate to George's estate. Fredette also faults the trust company for
not objecting to Pelot's actions when it was appointed successor personal
representative. The factual
underpinnings of Fredette's claims involve the property sold at auction. That matter was litigated by the probate
court, and issue preclusion may be fairly applied to prevent Fredette from
relitigating the issue.
B.
Settlement of the Personal Injury Claim
One of Frank's
neighbors, Larry Winters, was injured while trying to save Frank from a house
fire. Winters filed a personal injury
lawsuit against the estate. The estate
retained counsel, and a compromise settlement was reached. Under the terms of the settlement, Winters
received a piece of real estate from the estate. He also agreed to forfeit any further interest in the estate
arising from his status as a residual beneficiary under the will. The tentative settlement was presented to
the probate court, and it approved the proposed resolution of the claim. Fredette appeared at that hearing, and expressly
approved the settlement.
Fredette argues that the
trust company breached its fiduciary duty by compromising Winters' claim. However, the settlement was expressly
approved by the probate court. Thus,
the trust company did not breach its fiduciary duty to Frank's estate when it
transferred real estate pursuant to the settlement. Issue preclusion prevents Fredette from reopening the settlement.[3]
C. Appointment of the Successor Personal Representative
Fredette's complaint
also alleges that the trust company was improperly appointed successor personal
representative. That appointment,
however, was made by the probate court, and the trust company acted pursuant to
its judicially bestowed authority. Any
challenge to the appointment must have been made in the probate
proceedings.
Costs and Fees under § 814.025, Stats.
The trial court found
that Fredette's action was frivolous under § 814.025(3)(b), Stats.
An action is frivolous under that section if the party "knew or
should have known" that the action was "without any reasonable basis
in law or equity." A finding of
frivolousness under subsection (3)(b) is based on an objective standard. Stern v. Thompson & Coates, Ltd.,
185 Wis.2d 220, 241, 517 N.W.2d 658, 665-66 (1994). A mixed question of law and fact is presented. Id. at 241, 517 N.W.2d at
666. Findings of historical fact will
not be upset unless against the great weight and clear preponderance of the
evidence, and the ultimate question of whether those facts support a conclusion
of frivolousness under § 814.025 is a question of law that we review de
novo. Id.
The trial court found
that each of Fredette's causes of action was previously litigated during the
probate of Frank's estate. The court
further found that Fredette had been warned by the probate judge that continued
litigation of the conversion claim would likely result in a finding of
frivolousness. Fredette litigated her
claims before the probate court. She
then appealed to this court. A
reasonable person should have known that a subsequent action raising identical
claims would be without any reasonable basis in law or equity. The court's factual findings are not clearly
erroneous, and we agree with the trial court's legal conclusion. We affirm the trial court's award of costs
and fees under § 814.025, Stats.
Frivolous Appeal under Rule 809.25(3), Stats.
The final question is
whether Fredette's appeal was frivolous.
Fredette's appeal is frivolous for the same reasons that her litigation
in the circuit court was frivolous. Factual
findings are not required, and we conclude as a matter of law that Fredette's
appeal is frivolous. See Stern
at 252-53, 517 N.W.2d at 670. We remand
to the circuit court for a determination of costs and fees expended by the
respondents on this appeal. We deny
Fredette's motion to strike Diana Pelot's motion for fees and costs.
By the Court.—
Judgments affirmed, and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Because George Pelot, Sr., is deceased, the named defendants are Pelot's estate and Diana Pelot, as personal representative of Pelot's estate.