COURT OF APPEALS DECISION DATED AND FILED February 5, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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APPEAL
and CROSS-APPEAL from a judgment of the circuit court for
Before Dykman, Lundsten and Bridge, JJ.
¶1 DYKMAN, J. The Trust of Rene von Schleinitz appeals from a judgment declaring that Geoffrey and Edith Maclay own a parcel of land claimed by both the Maclays and the Trust. The Trust contends that the trial court’s declaration of property rights in this case is contrary to a previous probate judgment concerning the same property, and that its factual findings are clearly erroneous. The Maclays respond that the probate judgment and the trial court’s factual findings establish that they own the land in fee simple. The Maclays also cross-appeal from the portion of the court’s judgment determining that the Maclays’ alternative grounds for relief on the basis that one of the trustees is disqualified in this matter is inapplicable. We conclude that the probate judgment establishes that the Trust, not the Maclays, owns the land at issue. We further conclude that we have no basis to order the trial court to withdraw language from its findings and conclusions. We therefore reverse.
Background
¶2 The following facts are undisputed. Rene von Schleinitz died in 1972. His will provided for a trust to hold real property, including “[a]ll real estate situated in the Town of West Bend, Washington County, Wisconsin, known as Sunset Ridge … together with improvements thereon, which presently consists of the Main cottage, Tree-top cottage, Hillside cottage, which presently consists of a new structure erected by my daughter, Edith Maclay, [and] North cottage.” The will also provides that upon von Schleinitz’s death, “Edith Maclay[] may occupy premises known as ‘Hillside Cottage,’ which presently consists of a new structure … for such length of time as she shall so desire.”
¶3 In 1975, the Milwaukee County Probate Court entered a final judgment closing Rene von Schleinitz’s estate. The 1975 judgment placed the West Bend property in the Trust, “[i]nclud[ing] improvements thereon consisting of the Main cottage, Tree-top cottage and the North cottage and sundry buildings appurtenant thereto but not including improvement known as Hillside cottage owned by Edith Maclay and Geoffrey Maclay.”
¶4 In 2004, the Maclays’ daughter and successor co-trustee of
the Trust, Christine Lindemann, filed a petition to amend the Trust’s
inventory. In her petition, Lindemann asserted
that the 1975 judgment improperly excluded the
¶5 In 2006, the Maclays brought this action for a declaratory
judgment to determine the property rights in the land underlying and adjoining
the
Standard of Review
¶6 Whether a trial court grants or denies declaratory relief is
discretionary. J.G. v. Wangard, 2008 WI
99, ¶18, _Wis. 2d_, 753 N.W.2d 475. “However, when the appropriateness of
granting or denying declaratory relief depends on a question of law, our review
is de novo.”
Discussion
¶7 The Trust argues that the trial court erred in declaring the
Maclays the owners of the land underlying and adjoining the
¶8 We begin with the language of the 1975 probate judgment. That judgment places in the Trust:
The following described real
estate located on
That part of lot number four (4) in Section twenty-nine (29), in Township number eleven (11) North, of Range number nineteen (19) East, described as follows: [legal description of the boundaries of the Cedar Lake parcel, including the property under the Hillside cottage].
Includes improvements thereon
consisting of the Main cottage, Tree-Top cottage and the North cottage and
sundry buildings appurtenant thereto but not including improvement known as
Thus, the 1975 judgment clearly
establishes that the entire
¶9 Because the language of the 1975 probate judgment is clear
and unambiguous, we need not go beyond the document to determine its
meaning. Thus, we do not address the
parties’ dispute over the trial court’s factual findings surrounding the
¶10 The Maclays argue, however, that an alternative reason to
affirm the trial court’s ruling is that only one of the co-trustees, Christine
Lindemann, pursued this action, and that Lindemann should have been
disqualified from this action based on her clear personal bias against her
parents. See Auric v. Continental Cas. Co., 111
¶11 We reject the Maclays’ argument on two grounds. First, the Maclays have not established that there was a disagreement between Lindemann and the other co-trustee, Rip Maclay, as to whether or not to defend against the Maclays’ declaratory action. The testimony they point to by Rip Maclay reveals that Rip personally believes that his parents are the owners of the land they are claiming, and that he believes the amount of money the Trust has spent to defend against them is “insane” and “outrageous.” However, he also testified that he signed a letter retaining the Trust’s attorneys to represent it, and that he understands that he has the right to terminate them.[7] Thus, the record reveals that Rip Maclay, as well as Christine Lindemann, obtained legal representation on behalf of the Trust. We have no reason to conclude that Rip Maclay sought a different course of action than Christine Lindemann.
¶12 Finally, we decline to order the trial court to withdraw paragraph fifteen of its conclusions of law. That paragraph states:
For the reasons stated on the record the Court also finds and concludes that the offer of proof by Edith and Geoffrey Maclay Sr., as an alternative and second ground for relief based on the disqualification of one of the Trustees from acting because of bias and partiality, is also inapplicable.
We do not agree with the Maclays that this paragraph poses a risk of limiting any future attempt by a party seeking to remove Lindemann as trustee. The trial court made no factual findings regarding the Maclays’ claims, instead determining that the question of Lindemann’s qualifications was inapplicable to this action. As such, this paragraph has no bearing on any future attempt to remove Lindemann as trustee.
By the Court.—Judgment reversed.
Not recommended for publication in the official reports.
[1] The
Trust also challenges a circuit court ruling that establishes an easement of
necessity for the Maclays because the appropriate legal test was not met. See
McCormick
v. Schubring, 2003 WI 149, ¶11, 267
[2] The
Trust asserts that, according to the plain language of the will, Edith Maclay
was granted only a life estate in the
[3] The trial court recognized this definition of “improvement,” but then went on to conclude that “[i]t was the intent of the 1975 Final Judgment in probating Rene von Schleinitz’s estate that the improvement known as Hillside Cottage referred to more than just the structure,” that “[t]he improvement known as Hillside Cottage includes the home’s Curtilage,” and that “Edith and Geoffrey Maclay are the fee interest owners of the real estate of their home’s Curtilage.” The trial court did not explain why it concluded that the term “improvement” included the land adjoining the cottage and the land under the cottage.
[4] Neither the parties nor the trial court identify any authority supporting deviating from this definition, and we have no reason to conclude that the improvement known as Hillside cottage (the structure itself) must be owned by the same party that owns the underlying and surrounding land.
[5] The Maclays argue that this ruling is absurd because it deprives them of their right to continue their permanent home in its current location. However, this case does not present a challenge to the Maclays’ right to maintain their home’s current location.
[6] For
example, the parties dispute whether the trial court properly found that
Geoffrey Maclay’s statement to his children that the Maclays do not own the
land under the
[7] The trial court asked Rip Maclay whether his opinion “unfairly diminishes the trust assets, which would be to the detriment of the beneficiaries.” Rip responded:
Just the opposite.
….
Because it will clarify the ownership issue, which is very mobile right now, and to the extent there is an undivided quarterly interest in the remainder of the property, which would happen upon trust termination. How do you define the property? Who is going to define the property, knowing that it’s uncertain? And I think—or you can make a strong argument that—you can make a very strong argument that financially you’re better off knowing what’s there and what’s not there.
However, despite Rip’s opinion that it would benefit the Trust to concede the Maclays’ ownership of the land (which is not fully explained by his testimony), the record does not reveal any official attempt by him, as co-trustee, to do so.