Estate of Rusilowski, Matter of, 92-0998-FT

• Decision Date: 07 October 1992
• Docket Number: No. 92-0998-FT,92-0998-FT
• Citation: 492 N.W.2d 345,171 Wis.2d 648
• Parties: In the Matter of the ESTATE OF Valerie RUSILOWSKI, a/k/a Valerie W. Rusilowski. Richard CUCCIO and Loetta Cuccio, Appellants, v. Bernard G. RUSILOWSKI, Respondent.
• Court: Wisconsin Court of Appeals

Page 345

492 N.W.2d 345

171 Wis.2d 648

In the Matter of the ESTATE OF Valerie RUSILOWSKI, a/k/a

Valerie W. Rusilowski.

Richard CUCCIO and Loetta Cuccio, Appellants, v. Bernard G. RUSILOWSKI, Respondent.

No. 92-0998-FT.

Court of Appeals of Wisconsin.

Submitted on Briefs July 30, 1992.

Opinion Released Oct. 7, 1992.

Opinion Filed Oct. 7, 1992.

On behalf of the appellants, there was a petition for writ of prohibition by Kris M. Klovers and Donald A. Allen of Domnitz, Mawicke, Goisman & Rosenberg, S.C. of Milwaukee.

On behalf of the respondent, there was a response to the petition for writ of prohibition by Robert J. Reinertson of Hess, Daubert, Dexter & Reinertson, S.C. of Wausau.

Before BROWN, ANDERSON and SNYDER, JJ.

ANDERSON, Judge.

Richard and Loetta Cuccio appeal from an order granting the request of the personal representative of the estate for a substitution of judge. ¹ The Cuccios maintain that our mandate in an unpublished per curiam opinion, In re Rusilowski, [166 Wis.2d 1051, 481 N.W.2d 707 (table) ] (Wis.Ct.App.1992), does not require "further proceedings" and the estate does not have the right to substitution of the original judge assigned to this case. The estate's argument is that our remand contemplates "further proceedings" because the probate court, in all likelihood, will require briefs and oral argument; therefore, it is entitled to a substitution of the judge assigned under sec. 801.58(7), Stats. We conclude that our remand orders the probate judge to take specific action after remittitur rather than to conduct "further proceedings;" therefore, we reverse the order of the probate court granting the estate its request for a substitution of judge.

This appeal originates from proceedings in the probate court after our remand in Rusilowski. In that per curiam decision we reversed the probate court's determination that the estate failed to meet its burden of proving that the decedent's signature had been forged to a document of conveyance. Rusilowski, slip op. at 2 [166 Wis.2d 1051, 481 N.W.2d 707 (table) ]. We concluded that when a claimant seeks to require a personal representative to make a conveyance of real estate, the burden of proof is on the claimant to establish the validity of the decedent's signature on the purported document of conveyance. Id., slip op. at 4 [481 N.W.2d 707 (table) ]. In that per curiam, we wrote: "[W]e conclude that the probate court's decision was based on an improper assignment of the burden of proof. We remand the case and instruct the probate court to redecide the issue on the present record with the proper allocation of the burden of proof." Id., slip op. at 4-5 [166 Wis.2d 1051, 481 N.W.2d 707 (table) ] (footnote omitted). At the conclusion of that per curiam we again stated our directions: "We remand this case and direct the probate court to redecide the issue of whether the Cuccios are entitled to specific performance under the proper allocation of the burden of proof." Id., slip op. at 7 [166 Wis.2d 1051, 481 N.W.2d 707 (table) ].

After remittitur, the estate filed a request for substitution of judge under sec. 801.58(7), Stats. After considering objections from the Cuccios, the probate court reluctantly granted the request. The probate court commented that although it believed that the rationale of State ex rel. Parrish v. Circuit Court, 148 Wis.2d 700, 436 N.W.2d 608 (1989), should be extended to this case, existing law directed that the substitution request be honored. ²

The issue before this court is whether our remand requires "further proceedings" giving a party the right of substitution of the judge assigned under sec. 801.58(7), Stats. This is a question of statutory interpretation which we review de novo. See State ex rel. Town of Delavan v. Circuit Court, 167 Wis.2d 719, 723, 482 N.W.2d 899, 900-01 (1992).

The resolution of this question is governed by the principles set forth in State ex rel. Ondrasek v. Circuit Court, 133 Wis.2d 177, 394 N.W.2d 912 (Ct.App.1986) (Ondrasek II ). In Ondrasek II, we were called upon to determine whether the remand in the underlying action ³ supported a request for substitution of judge. In making this determination we were required to construe secs. 801.58(7) ⁴ and 808.08, Stats. ⁵ In Ondrasek II, we held that both secs. 801.58(7) and 808.08, Stats., contemplate, in part, "further proceedings" in the trial court following a remand from an appellate court. Ondrasek II, 133 Wis.2d at 182, 394 N.W.2d at 914. We also held that the phrase "further proceedings" was not ambiguous when the two statutes are read in harmony with each other. Ondrasek II, 133 Wis.2d at 182-83, 394 N.W.2d at 914. We concluded that "[s]ection 808.08(1), Stats., addresses a situation where the trial judge is ordered to take specific action following remittitur." Ondrasek II, 133 Wis.2d at 183, 394 N.W.2d at 914. (Emphasis in original.) We then determined that sec. 808.08(3) is a "catch-all" provision which includes all actions or proceedings not governed by sec. 808.08(1) or (2). Ondrasek II, 133 Wis.2d at 183, 394 N.W.2d at 914. We also concluded that the "further proceedings" of sec. 801.58(7) should be given the same meaning as in sec. 808.08(3). ⁶ Ondrasek II, 133 Wis.2d at 184, 394 N.W.2d at 914. By implication, we held that there would be no right of substitution if a mandate required only specific action by the trial court as contemplated in sec. 808.08(1). See Ondrasek II, 133 Wis.2d at 184 n. 3, 394 N.W.2d at 915. We conclude that, as a result, the right of substitution contained in sec. 801.58(7) would apply to the trial court proceedings after remittitur contemplated by sec. 808.08(3).

We then reviewed our mandate in the underlying action and held that it directed nothing specific of the trial judge. We pointed out that the mandate would require the trial judge to conduct "further proceedings" to revalue the real estate and building, include in the marital estate and value the law firm receivables, and recalculate the overall property division and family support order. We found that this was an extensive revision of the original judgment that called for the type of proceedings contemplated in sec. 808.08(3), Stats. Ondrasek II, 133 Wis.2d at 183, 394 N.W.2d at 914. We wrote that a harmonious reading of secs. 801.58(7) and 808.08, Stats., led to the conclusion that we had ordered the "further proceedings" contemplated by sec. 801.58(7) to justify the right of substitution of the assigned judge. Ondrasek II, 133 Wis.2d at 184, 394 N.W.2d at 914. In short, our remand required the trial court to add to the record and make further factfinding after revaluing and recalculating.

The facts of this case are distinguishable from Ondrasek II. Here, our mandate directs specific action by the probate court. The probate court is required to apply the correct burden of proof to the record developed in the trial in the underlying action and then to redecide if the Cuccios are entitled to specific performance. Because this mandate did not order a new trial, sec. 808.08(2), Stats., is not applicable. Because this mandate did not order extensive action on the part of the probate court, sec. 808.08(3) is not applicable. Rather, our mandate in Rusilowski falls squarely under sec. 808.08(1) because it directs specific action only. No new facts need be garnered; no added record need be made. Rather, the trial court is left with the same record and need not add to it. Therefore, consistent with our holding in Ondrasek II, the right of substitution under sec. 801.58(7), Stats., does not attach to proceedings in the trial court after remittitur where the mandate of the appellate court requires the trial judge to perform specifically directed actions.

Order reversed.

SNYDER, Judge (dissenting).

The majority holds that the issue before us is whether our remand requires "further proceedings," giving the estate the right of substitution of the judge assigned under sec. 801.58(7), Stats., and disposes of the issue as a question of law. I disagree. The issue before us is whether or not the trial court abused its discretion in granting the request for substitution under sec. 801.58(7).

In the first Rusilowski holding, we reversed the trial court on the basis of an improper assignment of the burden of proof. In re Rusilowski, No. 91-0524, unpublished slip op. at 4-5 [166 Wis.2d 1051, 481 N.W.2d 707 (table) ] (Wis.Ct.App. Jan. 22, 1992). Upon remand, we directed that the trial court "redecide the issue on the present record with the proper allocation of the burden of proof." Id. The remand was not ministerial, but required the trial court to redecide whether or not the decedent had legally conveyed a parcel of real estate weeks before her death, where a claim of forgery had been raised by the estate. Upon remand, the estate filed a request for substitution, and the trial court granted the request. Because our mandate did not clearly limit the trial court to only ministerial matters and because a trial court need not always agree with the specific manner in which the appellate court may determine the mandate may be satisfied, I would hold that the trial court did not misuse its discretion and affirm.

I dissent for three reasons. First, I believe that our mandate in the original appeal did not direct "specific action only," majority op. at 7, but rather was sufficiently open-ended to justify the trial court's honoring the substitution request. Second, I conclude that the majority's interpretation of State ex rel. Ondrasek v. Circuit Court, 133 Wis.2d 177, 394 N.W.2d 912 (Ct.App.1986) (Ondrasek II), an interpretation admittedly inferential, unnecessarily limits the discretion vested in the circuit court upon remand. Third, I conclude that the facts of this case (involving, as they do, a trial judge who decided that substitution was allowed under this court's mandate) are sufficiently different from those in Ondrasek II (involving a trial...