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.

                                    20
