COLORADO COURT OF APPEALS 2017COA54
Court of Appeals No. 16CA0388 Prowers County District Court No. 15PR30000 Honorable Douglas A. Tallman, Judge Honorable M. Jon Kolomitz, Judge
In re the Estate of Paul J. Gadash, deceased.
Lorella Gadash,
Petitioner-Appellant,
v.
Estate of Paul J. Gadash by and through its Personal Representative, Linda Rose,
Appellee.
APPEAL DISMISSED IN PART AND ORDER AFFIRMED
Division V Opinion by JUDGE ROMÁN Booras and Fox, JJ., concur
Announced April 20, 2017
Mark S. Davis, Lamar, Colorado, for Petitioner-Appellant
The Law Offices of David S. Anderson, David Anderson, Greeley, Colorado, for Appellee ¶1 In this probate action, Lorella Gadash (Mrs. Gadash) appeals
the probate court’s orders barring her creditor’s claim for services
rendered to her husband, Paul J. Gadash (Mr. Gadash), and
denying her petition for spouse’s elective share in favor of the Estate
of Paul J. Gadash, by and through its personal representative,
Linda Rose. We conclude that (1) Mrs. Gadash failed to timely
appeal the final order barring her creditor’s claim, and (2) the
probate court properly considered Mr. and Mrs. Gadash’s second
marital agreement in denying Mrs. Gadash’s petition for spouse’s
elective share. Accordingly, we dismiss the appeal in part and
affirm the order of the probate court.
I. Background
¶2 The day before their 1975 wedding, Mr. and Mrs. Gadash
executed an antenuptial agreement (the first marital agreement).
Under the terms of the first marital agreement, each spouse waived
any right to the other’s pre-marital property. Specifically, Mr.
Gadash owned two commercial properties in Kansas.
¶3 During their first year of marriage, Mr. and Mrs. Gadash
jointly acquired a hotel. In 1978, they entered into a second marital
agreement. Under the second marital agreement, Mrs. Gadash
1 waived her right to an elective share of Mr. Gadash’s estate and any
benefit that would pass to her from it. Mr. Gadash also waived the
right to an elective share of one-half of Mrs. Gadash’s estate, but
only as to property given to Mrs. Gadash by her parents.1
¶4 After the second marital agreement, Mr. Gadash liquidated his
Kansas properties, and he and Mrs. Gadash jointly acquired a
horse property, lots adjacent to their hotel property, and a
residential property. Mr. Gadash also separately bought and sold a
different motel. Mrs. Gadash received a home from her parents.
¶5 In 2001, Mr. and Mrs. Gadash entered into a third marital
agreement. In this agreement, they mutually waived rights to
certain real property listed in two exhibits attached to the
agreement. Of note, the third marital agreement specifically
incorporated the terms of the first marital agreement but was silent
as to the second marital agreement.
¶6 After the third marital agreement, Mr. and Mrs. Gadash re-
allocated the properties held by each of them. Mr. Gadash
conveyed the lots adjacent to the hotel to Mrs. Gadash and
1Mrs. Gadash anticipated a testamentary gift from a trust established by her parents.
2 purchased three additional commercial properties. Mrs. Gadash
conveyed the jointly held residential property and hotel to Mr.
Gadash and retained the residential property given to her by her
parents.
¶7 In 2008, Mr. Gadash executed his last will and testament. In
it, he left all of his probate estate to his daughter, who is also the
personal representative of the estate. He also left a $2000 gift to
Mrs. Gadash. Mrs. Gadash executed a will in 2014, leaving none of
her probate estate to Mr. Gadash.
¶8 On December 31, 2014, Mr. Gadash died and his will was
admitted into probate in an unsupervised administration of estate,
meaning “only the barest minimum of procedure is required and no
hearings are held, unless warranted.” 24 Catherine Anne Seal,
Colorado Practice Series, Elder Law § 16:2, Westlaw (database
updated Nov. 2016).
¶9 On March 4, 2015, Mrs. Gadash filed a petition for spouse’s
elective share of Mr. Gadash’s estate. The petition was filed under
the case number governing the administration of Mr. Gadash’s
estate. Notwithstanding the terms of the will, in her petition, Mrs.
Gadash argued that because Mr. Gadash’s will provided no gift to
3 Mrs. Gadash, under section 15-11-202, C.R.S. 2016, she was
entitled to elect an amount equal to fifty percent of the value of the
marital property portion of Mr. Gadash’s estate. She further alleged
that the second marital agreement was not controlling over Mr.
Gadash’s estate.
¶ 10 On the same day, Mrs. Gadash separately filed a creditor’s
claim against the personal representative, in which she sought
compensation for end-of-life services. In her creditor’s claim, Mrs.
Gadash argued that she should be compensated out of Mr.
Gadash’s estate for providing twenty-four-hour-a-day care to Mr.
Gadash for the year and a half preceding his death. Mrs. Gadash’s
creditor’s claim did not reference the petition for spouse’s elective
share. It did, however, acknowledge the existence of marital
agreements precluding her from taking under the estate of Mr.
Gadash.
¶ 11 On September 24, 2015, the probate court ruled that Mrs.
Gadash’s creditor’s claim was barred for failure to protest the
personal representative’s notice of disallowance before the statutory
deadline. Separately, on January 19, 2016, the probate court
denied Mrs. Gadash’s petition for spouse’s elective share.
4 ¶ 12 On March 4, 2016, Mrs. Gadash filed a notice of appeal,
challenging the probate court’s rulings against her on both the
creditor’s claim and petition for spouse’s elective share.
II. Discussion
¶ 13 We first address Mrs. Gadash’s creditor’s claim; then, we turn
to the petition for spouse’s elective share.
A. Creditor’s Claim
¶ 14 The personal representative contends that the probate court’s
order barring Mrs. Gadash’s creditor’s claim was a final order,
which Mrs. Gadash failed to timely appeal. Mrs. Gadash asserts
that the order barring her creditor’s claim did not become final until
the probate court ruled on her petition for spouse’s elective share,
and, thus, her appeal was timely. Because we conclude that Mrs.
Gadash’s creditor’s claim was governed by a proceeding
independent of her petition for spouse’s elective share, we agree
with the personal representative.2 Accordingly, we lack jurisdiction
2The personal representative also asserts that the probate court properly deemed Mrs. Gadash’s creditor’s claim barred. In light of our determination that we lack jurisdiction to review that order, we do not reach this alternative argument.
5 to consider the probate court’s order barring Mrs. Gadash’s
creditor’s claim.
1. Standards
¶ 15 The existence of subject matter jurisdiction is a question of
law that we review de novo. City of Boulder v. Pub. Serv. Co. of
Colo., 996 P.2d 198, 203 (Colo. App. 1999).
¶ 16 “The timely filing of a notice of appeal is a jurisdictional
prerequisite to appellate review.” In re Marriage of Farr, 228 P.3d
267, 268 (Colo. App. 2010) (citation omitted). The notice of appeal
must be filed within forty-nine days of the entry of a final order.
C.A.R. 4(a).
2. Jurisdiction
¶ 17 Resolution of the jurisdictional question in this case requires
us to determine (a) when an order of the probate court is final for
purposes of timely appeal, and the related question of (b) what
constitutes a discrete proceeding. See Scott v. Scott, 136 P.3d 892,
894 (Colo. 2006).
6 a. When is a Probate Order Final?
¶ 18 In Scott v. Scott, our supreme court held:
[A]n order of the probate court is final if it ends the particular action in which it is entered and leaves nothing further for the court pronouncing it to do in order to completely determine the rights of the parties as to that proceeding.
Id. at 896 (emphasis added) (noting that “the same rules of finality
apply in probate cases as in other civil cases”).
¶ 19 Thus, the finality of a probate order hinges on the
determination of rights within the underlying proceeding. See id.
We turn next to what constitutes a probate proceeding. Id.
b. What is a Probate Proceeding?
¶ 20 The probate code’s definition of ‘proceeding’ provides some
guidance. Id. According to the statute entitled “Scope of
Proceedings,” in an unsupervised administration, “[e]ach proceeding
before the court . . . is independent of any other proceeding
involving the same estate.” § 15-12-107(1)(a), C.R.S. 2016. “Thus,
the code instructs that the unsupervised administration of an
estate may involve multiple proceedings, that a petition initiates an
independent proceeding and defines its scope, and that a single
7 proceeding may dispose of multiple claims.” Scott, 136 P.3d at 896
(discussing section 15-12-107(1)(a), (b)).
¶ 21 In addition, the Scott court pointed to a comment to section
3-107 of the Uniform Probate Code (UPC), after which the Colorado
Probate Code is modeled. Id. at 896. “When resort to the judge is
necessary or desirable to resolve a dispute or to gain protection, the
scope of the proceeding if not otherwise prescribed by the Code is
framed by the petition.” UPC § 3-107 cmt. (Unif. Law Comm’n
2010).
¶ 22 After setting out this authority, the Scott court announced:
[O]nce a petition is filed, it defines a proceeding. Further pleadings relating to the same subject matter, whether labeled motions or petitions, are part of the same proceeding. When the subject matter of two petitions overlap, it would generally be appropriate to consider both petitions as belonging to the same proceeding.
Scott, 136 P.3d at 897 (quoting In re Estate of Newalla, 837 P.2d
1373, 1377 (N.M. Ct. App. 1992)).
i. Application in Scott v. Scott
¶ 23 In Scott, the supreme court found that two petitions were part
of a single proceeding because they “involved the same subject
8 matter.” Id. at 898. Specifically, petitioner’s initial filing raised
three claims, one of which requested that the probate court refuse
to admit a codicil to probate. Id. Respondent objected, arguing that
there was no basis to exclude the codicil. Id. at 894. Respondent
also filed a separate petition for formal probate of the codicil and
appointment of a personal representative. Id. at 893-94. The
probate court granted a motion for partial summary judgment
declaring the codicil invalid. Id.
¶ 24 The question in Scott was whether the probate court’s order
granting partial summary judgment on the codicil issue was a final
appealable order. See id. The supreme court determined that,
because it “adjudicated fewer than all the parties’ claims, it was not
a final judgment.” Id. at 894. It did so based on the following
reasoning.
¶ 25 First, the initial petition “initiated the proceeding and defined
its scope.” Id. at 898. In Scott, the first petition raised three claims.
¶ 26 Second, all subsequent pleadings that related to the claims set
forth in the initial petition, including those labeled “motions or
petitions,” were deemed part of the same proceeding. Id. at 897
(citation omitted). Because respondent’s petition “involved the same
9 subject matter” as petitioner’s initial petition — namely, whether
the codicil should be admitted to probate — it was part of the same
proceeding. Id. at 898.
¶ 27 Third, because the probate court’s order did not resolve all of
the claims in the initial petition, it was not final. Id.
ii. Application of Scott to this Case
¶ 28 Applying Scott here requires us to reach a different result.
¶ 29 First, Mrs. Gadash’s creditor’s claim and petition for spouse’s
elective share were filed separately, and raised two distinct claims.
These claims were subject to different statutory requirements and
alleged different facts:
The first pleading in this case was a petition for spouse’s
elective share of Mr. Gadash’s estate, pursuant to section
15-11-202. Under section 15-11-202(1), “[t]he surviving
spouse of a decedent who dies domiciled in this state has
a right of election . . . to take an elective-share amount
equal to fifty percent of the value of the marital-property
portion of the augmented estate.” Mrs. Gadash’s petition
for spouse’s elective share alleged that she was left out of
Mr. Gadash’s will.
10 Separately, Mrs. Gadash filed a creditor’s claim seeking
compensation for rendering end-of-life services to Mr.
Gadash, pursuant to section 15-12-801, C.R.S. 2016.
Under section 15-12-801, “[t]he decedent’s creditors are
entitled, within the time limits imposed by the controlling
state law, to have their claims satisfied out of the
decedent’s probate estate.” Restatement (Third) of Prop.:
Wills and Donative Transfers § 1.1 cmt. f (Am. Law. Inst.
1999). Mrs. Gadash’s creditor’s claim alleged that Mr.
Gadash lived at home under Mrs. Gadash’s twenty-four-
hour-a-day care for a year and a half before his death
and comparable care would have cost the estate $12 per
hour. Mrs. Gadash therefore requested $5000 per month
retroactive to the first date of services rendered.
¶ 30 Second, Mrs. Gadash’s creditor’s claim and petition for
spouse’s elective share neither overlapped nor involved the same
subject matter. See Scott, 136 P.3d at 897. In Scott, the second
petition responded directly to the first petition; whereas, in this
case, the subject matters of Mrs. Gadash’s claims are unrelated.
Cf. In re Estate of Scott, 151 P.3d 642, 645 (Colo. App. 2006)
11 (holding a petition part of the same proceeding as an earlier petition
because the former “relate[d] to the same set of claims as those” in
the latter).
¶ 31 Third, the probate court’s order barring Mrs. Gadash’s
creditor’s claim disposed of everything raised in that filing. See
Scott, 136 P.3d at 898.
¶ 32 Accordingly, we conclude that Mrs. Gadash’s petition for
spouse’s elective share and creditor’s claim initiated independent
proceedings. Therefore, as to the discrete proceeding governing
Mrs. Gadash’s creditor’s claim, the probate court’s order was final.3
¶ 33 We recognize that Mrs. Gadash’s petition for spouse’s elective
share was filed “in the alternative of receiving compensation for
services rendered pursuant to her creditor’s claim,” and that the
two pleadings bore the same case number. Nonetheless, Mrs.
3 Mrs. Gadash argues that the probate court’s order on her creditor’s claim was not certified final under C.R.C.P. 54(b). Indeed, the Scott court observed that, if there is any question as to a probate order’s finality, “a party may request that the probate court certify [the] order as final for appeal pursuant to C.R.C.P. 54(b).” Scott v. Scott, 136 P.3d 892, 897 (Colo. 2006). Such certification was not necessary here, however, because the order barring Mrs. Gadash’s creditor’s claim disposed of “all the claims presented in [the] proceeding.” Id.
12 Gadash’s claims were not “related.” Id. at 897. Likewise, the case
number is not dispositive of the scope of the proceeding.4 See
Estate of Scott, 151 P.3d at 644 (noting that the supreme court in
Scott did not intend “to enable parties to obtain a ‘final, appealable
judgment’ by filing a new petition under a new case number”).
¶ 34 To be sure, the supreme court referenced the fact that the
petitions in Scott were filed under the same case number. 136 P.3d
at 898. But it did so only after concluding that, unlike here, the
second petition “was responsive to” the first. Id. A contrary
determination — that all claims against an estate are “related”
because they are filed under the same case number — would violate
Scott’s determination that “there can be more than one proceeding
in the administration of a single estate.” Estate of Scott, 151 P.3d at
644.
¶ 35 Moreover, the “legal effect of the order” barring Mrs. Gadash’s
creditor’s claim supports our conclusion. Luster v. Brinkman, 250
P.3d 664, 666 (Colo. App. 2010) (directing courts to look to the legal
4The petition for spouse’s elective share and the creditor’s claim bore the same case number because they were filed within the administration of a single estate.
13 effect of an order, “rather than its form,” in determining finality).
By barring Mrs. Gadash from bringing a creditor’s claim, the
probate court’s order “dispose[d] of [that] particular action and
prevent[ed] further proceedings as effectually as would any formal
judgment.” Id. (citation omitted); cf. Estate of Scott, 151 P.3d at 645
(holding a probate order was not final because it “did not finally
conclude any substantive matter and [had] no preclusive effect”).
¶ 36 For these reasons, we hold that Mrs. Gadash’s creditor’s claim
initiated a proceeding independent of the petition for spouse’s
elective share, and that the probate court’s order barring her
creditor’s claim “completely determine[d] the rights of the parties as
to that proceeding.” Scott, 136 P.3d at 896. Because Mrs. Gadash
did not timely appeal the probate court’s final order barring her
creditor’s claim, we lack jurisdiction to review it. Marriage of Farr,
228 P.3d at 268.
¶ 37 We therefore dismiss this portion of the appeal.
B. Petition for Spouse’s Elective Share
¶ 38 Mrs. Gadash also contends that the probate court erred when
it considered the terms of the second marital agreement in denying
her petition for spouse’s elective share. Specifically, she argues that
14 the second marital agreement was rendered void by the third
marital agreement. We are not persuaded.
1. Standard of Review
¶ 39 The interpretation of a contract, including whether an
unambiguous contract is fully integrated, is a question of law that
we review de novo. Ad Two, Inc. v. City & Cty. of Denver ex rel.
Manager of Aviation, 9 P.3d 373, 376 (Colo. 2000); Midwest Builder
Distrib., Inc. v. Lord & Essex, Inc., 891 N.E.2d 1, 18 (Ill. App. Ct.
2007); see also Colowyo Coal Co. v. City of Colorado Springs, 879
P.2d 438, 443 (Colo. App. 1994) (“When the evidence of an
agreement consists of documents, as here, the determination of
their effect is a matter of law.”) (citation omitted).
¶ 40 Marriage agreements should be construed and treated in the
same manner as other contracts, and, in construing them, we must
give effect to the parties’ intent. In re Marriage of Fiffe, 140 P.3d
160, 163 (Colo. App. 2005). Where the contract’s terms are
unambiguous, we determine the parties’ intent from the language of
the instrument itself. Ad Two, Inc., 9 P.3d at 376. We interpret
contracts based on the “plain and generally accepted meaning of
the words employed.” Id.
15 2. Analysis
¶ 41 Mrs. Gadash asserts that the following paragraph in the third
marital agreement was a merger or integration clause, which
rendered the second marital agreement void:5
The parties agree that this agreement shall only apply to those properties described in Exhibits “A” and “B” and shall not effect [sic] any other property or rights they may have unless those rights were first addressed in the [first marital agreement].
¶ 42 We agree with the personal representative that this is not a
merger or integration clause.
¶ 43 A merger or integration clause is a statement “that a written
contract is integrated, that all conditions, promises, or
representations are contained in the writing, and that the parties
are not to be bound except by the writing . . . .” 11 Williston on
Contracts § 33:23 (4th ed.) Westlaw (database updated May 2016).
¶ 44 Parties may use a merger or integration clause to “substitute
an entirely new contract for a previous one, particularly where the
5 The personal representative asserts Mrs. Gadash did not preserve this argument because she did not raise it at the trial level. On our review of Mrs. Gadash’s pre-trial brief, however, we conclude this argument was preserved. Thus, we consider it.
16 modified or new contract is in writing and is valid in all other
respects.” B-S Steel of Kan., Inc. v. Tex. Indus., Inc., 439 F.3d 653,
661 (10th Cir. 2006) (finding an earlier contract was substituted
where a later contract contained an integration clause); In re
Marriage of Young, 682 P.2d 1233, 1236 (Colo. App. 1984) (“Those
who are qualified to make an antenuptial or other contract are
likewise qualified . . . to unmake the contract all together, or to
substitute a new contract . . . .”) (citation omitted). A “binding
integrated agreement discharges” inconsistent prior agreements.
Restatement (Second) of Contracts § 215 cmt. a (Am. Law Inst.
1981).
¶ 45 Here, the third marital agreement contains no language
indicating that it constituted the entire agreement between the
parties with respect to its subject matter. Cf. Nelson v. Elway, 908
P.2d 102, 107 & n.1 (Colo. 1995) (finding a “plain[] and
unambiguous[]” merger clause where an agreement stated: “This
Agreement constitutes the entire Agreement between the parties
pertaining to the subject matter contained herein, and supersedes
all prior agreements, representations and understandings of the
parties”); cf. In re Centrix Fin., LLC, 434 B.R. 880, 885 (Bankr. D.
17 Colo. 2010) (“This Agreement, including any documents referred to
herein and attached hereto, constitutes the entire agreement
between the parties with respect to its subject matter and
supersedes all prior representations, understanding or agreements
between the parties.”).
¶ 46 Indeed, language in the third marital agreement expressly
limited its scope to “only . . . those properties described” in the
exhibits attached to the third marital agreement. It said nothing
about the already existing document pertaining to the same general
subject matter, nor did it purport to supersede the second marital
agreement. See Colowyo Coal Co., 879 P.2d at 443 (holding an
agreement was not nullified where “[n]othing in the plain language
of the document indicate[d] an intention to substitute the
[subsequent] agreement for the original contract”); see also Hill v.
Ricoh Ams. Corp., 603 F.3d 766, 778 (10th Cir. 2010) (holding that
a subsequent agreement did not supersede a prior agreement where
the former did “not explicitly state that [the prior agreement was]
nullified . . . . [n]or [was] nullification implicit” because the
subsequent agreement failed to mention matters discussed in the
prior agreement) (citation omitted).
18 ¶ 47 Moreover, the second and third marital agreements govern
distinct property. Thus, they are independently enforceable and
can be given full force and effect without contradicting one
another.6 Mrs. Gadash can be denied a share of Mr. Gadash’s
estate, pursuant to the second marital agreement, while also
waiving rights to the distinct real property listed in the exhibits
attached to the third marital agreement.
¶ 48 Under these facts, because the third marital agreement
contains no merger or integration clause and does not contradict
the terms of the second marital agreement, we conclude it does not
supersede the second marital agreement.7
6 In order for a subsequent contract to implicitly supersede an earlier one, the two agreements must cover the same subject matter and be inconsistent with one another. Compare Coop. Refinery Ass’n v. Consumers Pub. Power Dist., 190 F.2d 852, 856 (8th Cir. 1951) (“A subsequent contract completely covering the same subject-matter, and made by the same parties, as an earlier agreement, but containing terms inconsistent with the former contract, so that the two cannot stand together . . . is substituted for the earlier contract.”), with NorAm Drilling Co. v. E & Pco Int’l, LLC, 178 So. 3d 1061, 1068 (La. Ct. App. 2015) (“A letter agreement alters only those terms of the original agreement to which it refers, leaving intact any unmentioned portions of the original agreement that are not inconsistent with the modification.”). 7 We reject Mrs. Gadash’s argument that, by failing to incorporate
the second marital agreement by reference, the third marital
19 ¶ 49 We therefore agree with the district court that nothing
indicates Mr. and Mrs. Gadash mutually intended for the third
marital agreement to render the second marital agreement void.
III. Conclusion
¶ 50 The appeal is dismissed in part, and the order is affirmed.
JUDGE BOORAS and JUDGE FOX concur.
agreement impliedly revoked the second marital agreement. This argument is premised on Mrs. Gadash’s contention that the third marital agreement contained a merger or integration clause. Because we conclude the third marital agreement did not integrate or merge with the second marital agreement, we reject Mrs. Gadash’s related argument as to incorporation by reference.