In re the Estate of Louise F. Ramstetter, deceased.
Edrie Jeanne Hostetler, Appellee. Florence Marie Ramstetter and Karol Lue Ramstetter, Appellants,
County District Court No. 09PR151 Honorable David A. Bottger,
Farina & Kampf, Professional Corporation, David M.
Dodero, Nicholas H. Gower, Grand Junction, Colorado, for
Poskus, Caton & Klein, P.C., Bernard A. Poskus, Jarod
Balson, Denver, Colorado, for Appellee
1 This estate case concerns the interests of three sisters -
Edrie Jeanne Hostetler (Jeanne), Florence Marie Ramstetter
(Marie), and Karol Lue Ramstetter (Karol) - in a 500-acre
tract located in Jefferson County (Ranch). Their late
mother, Louise F. Ramstetter (Louise), devised the Ranch to
them "in equal shares to be held as joint tenants."
Their dispute arose from the admitted uncertainty of the
attorney who drafted the will and - as found by the trial
court - the uncertainty of the devisees over how a joint
tenancy created by will could be severed.
2 Marie and Karol appeal:
●an order granting Jeanne's motion for judgment on
the pleadings and dismissing their claim to reform
Louise's will; and
● an order entered following a bench trial declaring,
as relevant to this appeal, that an "Agreement and
Release" entered into among the sisters was
"invalid as a result of mutual mistake, " and that
Jeanne had severed the joint tenancy by creating a tenancy in
3 We hold that the trial court properly excluded extrinsic
evidence of Louise's intent in executing the will, as the
recently-enacted section 15-11-806, C.R.S. 2015, is not
retroactive on these facts. We further hold that the trial
court did not err in applying the mutual mistake defense.
Accordingly, we affirm.
4 Louise's 2008 will devised the Ranch to the sisters
"in equal shares to be held as joint tenants." It
also designated Marie and Karol as personal representatives
if Rose Pugliese, the attorney who had drafted the will,
declined appointment. After Louise died in 2009 and Pugliese
renounced her appointment, Marie and Karol began
administering the estate.
5 Three years later, Jeanne petitioned to remove Marie and
Karol as personal representatives. She also sought a
declaratory judgment that she had severed the joint tenancy
among the sisters, creating a tenancy in common as to her
one-third of the Ranch, by deeding her interest to a trust
that she had created.
6 Marie and Karol cross-petitioned to enforce the 2012
Agreement and Release, in which they had agreed to convey
thirty-five acres of the Ranch to Jeanne and she had agreed
to convey the remainder of her interest in the Ranch to them,
with all other claims being released. They amended their
cross-petition to seek reformation of the will based on
Pugliese's failure to have implemented Louise's
intent to keep ownership of the Ranch within the family
(because Pugliese mistakenly believed that a joint tenancy
created by a will could not be severed through the unilateral
action of any one joint tenant).
7 In a detailed written order, the trial court granted
Jeanne's motion for judgment on the pleadings. The court
held that the will was unambiguous because the only
"reasonable, or for that matter, legal"
interpretation was that it conveyed the Ranch "to the
named devisees in joint tenancy, which may be severed by any
8 Then the court addressed section 15-11-806, effective July
1, 2010, which allows a court to reform even an unambiguous
instrument, "to conform the terms to the
transferor's intention, " based on clear and
convincing evidence that "the transferor's intent
and the terms of the governing instrument were affected by a
mistake of fact or law." It accepted the parties'
position that application of section 15-11-806 was determined
by section 15-17-101(2), C.R.S. 2015, but concluded that
section 15-17-101(2) did not make section 15-11-806
applicable because Louise had died before the latter section
became effective. This conclusion presents a novel question
of statutory interpretation.
9 Following a four-day hearing on the claim to enforce the
Agreement and Release, the trial court entered another
lengthy written order addressing Jeanne's defenses - lack
of consideration, rescission, and mutual mistake. The court
ruled against Jeanne as to lack of consideration and
rescission, rulings that she has not appealed.
10 After summarizing the evidence, the court found, "as
a matter of fact that when they executed the Agreement and
Release, Jeanne, Marie and Karol believed that this was the
only way the joint tenancy created by Louise's will could
be severed." On this basis, it declared the Agreement
and Release "invalid as a result of mutual mistake among
the parties to it." It also declared that Jeanne had
severed the joint tenancy by the conveyance to her trust, and
thus, as between Jeanne, on the one hand, and Marie and
Karol, on the other, a tenancy in common existed.
Whether the Trial Court Properly Excluded Extrinsic Evidence
of Louise's Intent Offered to Reform Her Will
11 Karol and Marie first contend the trial court improperly
dismissed their claim for reformation of Louise's will.
Like the trial court and the parties, we agree that whether
to apply section 15-11-806 turns on section 15-17-101(2).
Hence, first, we construe section 15-17-101(2). Then we
conclude that the trial court properly declined to apply
section 15-11-806, although our conclusion does not rest on
the date of Louise's death. See Roque v. Allstate
Ins. Co., 2012 COA 10, ¶ 7 ("We can affirm for
any reason supported by the record, even reasons not decided
by the trial court.").
Preservation and Standard of Review
12 Although Jeanne concedes preservation of this issue, she
asserts on appeal that we should not consider it because had
Marie and Karol expeditiously administered the estate, their
reformation claim would have been resolved before the General
Assembly enacted section 15-11-806. But Jeanne does not
indicate where she raised this assertion in the trial court.
See C.A.R. 28(a)(7)(A). Nor have we found a record
reference to her assertion. For these reasons, we decline to
address it. See Laleh v. Johnson, 2016 COA 4, ¶
8 (noting that appellate courts "generally do not
address unpreserved civil issues").
13 "An appellate court reviews a district court's
order granting a judgment on the pleadings based on C.R.C.P.
12(c) de novo." In re Estate of Johnson, 2012
COA 209, ¶ 18. Likewise, "[t]he interpretation of a
statute raises a question of law that we review de
novo." Cain v. People, 2014 CO 49, ¶ 10.
14 Section 15-11-806 amended the probate code by permitting a
reform the terms of a governing instrument, even if
unambiguous, to conform the terms to the transferor's
intention if it is proved by clear and convincing evidence
that the transferor's intent and the terms of the
governing instrument were affected by a mistake of fact or
law, whether in expression or inducement.
15 Whether section 15-11-806 applies retroactively is
governed by a separate section of that code providing, in
(a)The code or the amendment applies to governing instruments
executed by decedents dying thereafter;
(b)The code or the amendment applies to any proceedings in
court then pending or thereafter commenced, regardless of the
time of the death of decedent, except to the extent that in
the opinion of the court the former procedure should be made
applicable in a particular case in the interest of justice or
because of infeasibility of application of the procedure of
this code or any amendment to this code;
. . . .
(e) Any rule of construction or presumption provided in this
code or in any amendment to this code applies to governing
instruments executed before July 1, 1974, or before the
effective date of an amendment to this code, unless there is
a clear indication of a contrary intent[.]
16 When construing statutes, an appellate court looks first
"to the plain meaning of the statutory language, reading
words and phrases in context and construing them according to
common usage." People v. Bonvicini, 2016 CO 11,
¶ 12. The court should harmonize, if possible,
provisions that could conflict. Colo. Dep't of
Revenue v. Hibbs, 122 P.3d 999, 1004 (Colo. 2005). And
it should avoid interpretations that render provisions
superfluous. See Kisselman v. Am. Family Mut. Ins.
Co., 292 P.3d 964, 969 (Colo.App. 2011).
Trial Court's Order
17 In concluding that Karol and Marie could not present
extrinsic evidence of Louise's intent to support their
reformation claim under section 15-11-806, the trial court
primarily relied on section 15-17-101(2)(a). The court
explained that because Louise had died before the General
Assembly enacted section 15-11-806, that provision "is
inapplicable to her Will."
18 The trial court rejected Karol and Marie's arguments
that section 15-17-101(2)(b) and (2)(e) rendered section
15-11-806 retroactively applicable to their case. Pointing to
section 15-17-101(2)(b)'s reference to a "former
procedure, " the trial court concluded that subsection
(2)(b) only applies to amendments relating to "the