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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                       This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
October 26, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                      petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                              Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                       and RULE 809.62.
                                                                                                                                                       Cir. Ct. No.   2001CV381
Appeal No.                                                                            2004AP690
STATE OF WISCONSIN                                                                                                                                     IN COURT OF APPEALS
DISTRICT II
GREGORY W. SCHAEFER AND TERRY SCHAEFER,
PLAINTIFFS-RESPONDENTS,
V.
BARBARA CONWAY,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Kenosha County:
S. MICHAEL WILK, Judge.  Affirmed.
Before Snyder, P.J., Brown and Nettesheim, JJ.
¶1                                                                                    PER CURIAM.    Barbara Conway appeals from an order dismissing
her  counterclaim  alleging  that  her  brother,  Gregory  Schaefer,  breached  his
fiduciary duty to her regarding the division of their mother’s estate.   She argues
that under applicable Illinois law Gregory owed her a fiduciary duty by virtue of




No.   2004AP690
his appointment with her as co-executor of their mother’s will and by virtue of
their close familial relationship.   We agree with the circuit court’s conclusion that
no fiduciary duty existed and affirm the order of dismissal.   We deny Gregory’s
motion to declare the appeal frivolous.
¶2                                                                                                       As a matter of estate planning and to avoid probate, Barbara’s and
Gregory’s mother, Mildred Schaefer, titled property she owned in Twin Lakes,
Kenosha county, Wisconsin, in all three of their names as joint tenants with rights
of survivorship.1   All three joint tenants resided in Illinois.   Mildred also opened
three  bank  accounts  designating  Barbara  as  a  joint  owner  with  rights  of
survivorship.   Mildred died in 1997.   Her will designated Barbara and Gregory as
co-executors and directed that all her property be equally divided between them.
No probate proceeding was filed because all of Mildred’s property was held in
joint tenancy.   Barbara paid Gregory $36,693.64, one-half the value of the joint
accounts after the payment of estate debts.
¶3                                                                                                       Gregory and Barbara could not agree on what to do about the Twin
Lakes  property  and  their  relationship  deteriorated.    Gregory  commenced  this
action for partition or sale of the property with equal division of the proceeds.
Barbara filed a counterclaim asserting that because Gregory was the personal
representative of Mildred’s estate, he owed her a fiduciary duty and breached that
duty by persuading her to pay him the one-half value of the joint bank accounts
when she was not required to do so.   She also alleged that she paid taxes, utilities,
1  Barbara’s appellate brief does not include citations to the record to corroborate the facts
set out in the brief.   An appellant’s failure to provide record citations in his or her brief whereby
the facts set forth in the brief can be corroborated improperly burdens the appellate court and
precludes any challenge on reconsideration to the facts stated in the opinion.  See State v. Haynes,
2001 WI App 266, ¶1 n.2, 248 Wis. 2d 724, 638 N.W.2d 82.
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No.   2004AP690
and maintenance expenses on the Twin Lakes property.   She sought an offset from
the property’s sale proceeds for the $36,693.64 she paid to Gregory and all sums
she expended to maintain the property after Mildred’s death.
¶4                                                                                     An  order  for  partition  was  entered  and  Barbara  purchased  the
property.   One-half the appraised value was escrowed pursuant to the partition
order.  A trial to the court was conducted on Barbara’s counterclaim.
¶5                                                                                     At trial, Barbara testified that she had not been advised that she was
entitled to keep the money in the joint bank accounts and that had she known she
was not required to give Gregory one-half of the accounts, she would not have.
She indicated that Gregory had suggested using the services of Attorney John
Zavislak to distribute Mildred’s estate but that Gregory had not disclosed that
Zavislak shared office space with Gregory’s brother-in-law.   She explained that if
she had known of the connection between Gregory and Zavislak, she would not
have  trusted  Zavislak’s  advisements  that  Mildred’s  estate  should  be  divided
equally and informally.   She argued that Gregory breached his fiduciary duty by
persuading  her  to  use  Zavislak’s  services  when  Zavislak  was  more  loyal  to
Gregory’s  interests  because  of  the  business  relationship  with  Gregory’s
brother-in-law.
¶6                                                                                     The circuit court found that after Mildred’s death, $19,083.02 was
expended in maintaining and improving the Twin Lakes property.    It required
Gregory to pay one-half that sum by an offset to his one-half share of the sale
proceeds.   The court concluded that Gregory did not owe Barbara a fiduciary duty
because he was not legally or equitably designated a personal representative of
Mildred’s estate.   It found that Mildred, Barbara and Gregory shared the goal of
dividing Mildred’s estate equally without a court probate proceeding.
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No.   2004AP690
¶7                                                                                         Barbara argues that Gregory’s fiduciary duty stems from two sources
under Illinois law:   first, acting as co-executor under Mildred’s will; and second,
as a matter of fact because Gregory and Barbara are brother and sister, vacationed
together, and had a close relationship leading Barbara to trust Gregory.2   Whether
a fiduciary duty exists involves the application of law to the facts of the case and,
therefore, presents a question of law that we review de novo.   See Jacobson v.
American Tool Cos., Inc., 222 Wis. 2d 384, 393, 588 N.W.2d 67 (Ct. App. 1998).
The circuit court’s findings of fact will not be set aside unless they are clearly
erroneous.  WIS.  STAT.  § 805.17(2)  (2003-04).3    We  accept  the  circuit court’s
determination as to the weight and credibility of the witnesses.   Jacobson, 222
Wis. 2d at 390.
¶8                                                                                         Illinois recognizes that
[a] fiduciary or confidential relationship may be found in
one of two ways.   A fiduciary relationship may be found to
exist as a matter of law from the relationship of the parties,
such as an attorney-client relationship, or may be found to
exist  by  the  facts  of  a  particular  situation,  such  as  a
relationship where trust is reposed on one side and results
in superiority and influence on the other side.    Where a
fiduciary  relationship  is  alleged  simply  on  the  basis  of
evidence showing trust and confidence have been reposed
by one person in another, the existence of the relationship
must be proved by clear and convincing evidence.
Estate of Long, 726 N.E.2d 187, 190-91 (Ill. App. Ct. 2000) (citation omitted).
2  There is no dispute that Illinois law applies.
3   All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
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No.   2004AP690
¶9                                                                                         Barbara argues that the circuit court failed to consider under Estate
of  Lightner,                                                                              225  N.E.2d  417  (Ill.  App.  Ct.  1967),  that  despite  the  fact  that
Mildred’s will was never admitted to probate and no personal representative letters
were issued, the will’s nomination of Gregory as co-executor effectively created a
fiduciary relationship.   In Lightner, the named executor of Esther Lightner’s will
approached Esther’s elderly widower and persuaded him to sign an agreement
waiving his right to renounce the will.   Id. at 420-21.   The agreement was signed
without full disclosure of the contents of the will and before executory letters were
issued.   Id. at 422.   The court held that even though the letters had not been issued,
a fiduciary relationship existed between the named executor and Esther’s widower
such that full disclosure was required.   Id.
¶10    This is not a Lightner case.    In Lightner, the acts of the named
executor “clearly arose out of the anticipated administration of the estate.”   Id.
The named executor ultimately was appointed executor.    The named executor
committed fraud to procure the elderly widower’s waiver of spousal rights.   Here,
despite  having  executed  the  will  in                                                   1977,  Mildred,  with  the  knowledge  and
assistance  of  both  Barbara  and Gregory,  organized her  affairs so as to avoid
probate.   Thereafter, the nomination of co-executors in the 1977 will never came
into play.    Gregory does not stand in any fiduciary position by virtue of the
ineffective nomination.
¶11    Barbara  also  advances  her  close  relationship  with  Gregory  as
creating a fiduciary duty.    Long explains that the factors to be considered in
determining whether a fiduciary relationship exists from the facts of the situation
include “the degree of kinship, disparity of age, health and mental condition, and
the extent to which the allegedly servient party entrusted the handling of his [or
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No.   2004AP690
her] business and financial affairs to and reposed faith and confidence in the
dominant party.”   Long, 726 N.E.2d at 191.
¶12    Other than the brother-sister relationship, there is no evidence in the
record that any of the other factors created a fiduciary relationship.4   The circuit
court found that Mildred, Gregory and Barbara worked toward the goal of equally
dividing her estate and avoiding probate, a goal identified before Mildred’s death.
That finding is not clearly erroneous.    The court also found credible Attorney
Zavislak’s testimony that he advised Barbara she was not legally obligated to
share the bank accounts with Gregory but that Gregory might have a legal claim
that  Barbara  was  named  on  the  accounts  only  as  a  matter  of  convenience.
Zavislak  testified  that  Barbara  spearheaded  Mildred’s  financial  arrangements,
including having Mildred’s savings bonds titled to joint ownership.   Barbara was
not an unsophisticated party who relied on Gregory for handling Mildred’s affairs.
Further, there was no showing that Gregory gained superiority over Barbara.   At
all times Barbara had access to all monies in the joint bank accounts.
¶13    Although it would be wonderful if parents, brothers, sisters, friends,
and relatives were required to treat each other with the utmost respect and care,
and were worthy of the trust attendant to such relationships, that it not case.   The
brother-sister  relationship  is  not  enough  to  establish  a  fiduciary  duty.    See
McCreight v. McCreight, 473 N.E.2d 577, 580 (Ill. App. Ct. 1985).   Because no
fiduciary relationship existed, we need not address Barbara’s argument that the
fiduciary duty was breached by nondisclosure.
4  Barbara makes an unsubstantiated claim in her appellant’s brief that she and Gregory
vacationed together.
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No.   2004AP690
¶14    Gregory contends that  the  appeal is frivolous.5    See WIS.  STAT.
RULE 809.25(3).   Whether an appeal is frivolous is a question of law.   NBZ, Inc.
v. Pilarski, 185 Wis. 2d 827, 841, 520 N.W.2d 93 (Ct. App. 1994).   Barbara’s
argument that a fiduciary relationship exists by virtue of the sibling relationship is
frivolous.   However, we cannot award attorney fees under RULE 809.25(3) unless
“the entire appeal is frivolous.”   See Lenhardt v. Lenhardt, 2000 WI App 201,
¶16, 238 Wis. 2d 535, 618 N.W.2d 218.   Barbara’s claim under Lightner, although
rejected, had arguable merit.   The motion for attorney fees for a frivolous appeal is
denied.
By the Court.—Order affirmed.
                                                                                                      This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                             (b)5.
5                                                                                                     Gregory’s assertion that he is entitled to double damages if the appeal is found
frivolous  misplaces  reliance  on  WIS.  STAT.  RULE                                                 809.83(1).                                                                         RULE  809.83(1)(a)1.  only
authorizes double costs if this court finds that an appeal was taken for the purpose of delay.   By
an order of November 17, 2004, we denied Gregory’s motion to dismiss the appeal on the ground
that Barbara missed various deadlines relating to the preparation of transcripts.
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