(dissenting). The majority holds that the issue before us is whether our remand requires "further proceedings," giving the estate the right of substitution of the judge assigned under sec. 801.58(7), Stats., and disposes of the issue as a question of law. I disagree. The issue before us is whether or not the trial court abused its discretion in granting the request for substitution under sec. 801.58(7).
In the first Rusilowski holding, we reversed the trial court on the basis of an improper assignment of the *655burden of proof. In re Rusilowski, No. 91-0524, unpublished slip op. at 4-5 (Wis. Ct. App. Jan. 22,1992). Upon remand, we directed that the trial court "redecide the issue on the present record with the proper allocation of the burden of proof." Id. The remand was not ministerial, but required the trial court to redecide whether or not the decedent had legally conveyed a parcel of real estate weeks before her death, where a claim of forgery had been raised by the estate. Upon remand, the estate filed a request for substitution, and the trial court granted the request. Because our mandate did not clearly limit the trial court to only ministerial matters and because a trial court need not always agree with the specific manner in which the appellate court may determine the mandate may be satisfied, I would hold that the trial court did not misuse its discretion and affirm.
I dissent for three reasons. First, I believe that our mandate in the original appeal did not direct "specific action only," majority op. at 654, but rather was sufficiently open-ended to justify the trial court's honoring the substitution request. Second, I conclude that the majority's interpretation of State ex rel. Ondrasek v. Circuit Court, 133 Wis. 2d 177, 394 N.W.2d 912 (Ct. App. 1986) (Ondrasek II), an interpretation admittedly inferential, unnecessarily limits the discretion vested in the circuit court upon remand. Third, I conclude that the facts of this case (involving, as they do, a trial judge who decided that substitution was allowed under this court's mandate) are sufficiently different from those in Ondrasek II (involving a trial judge who decided that substitution was not allowed under this court's mandate) to make Ondrasek II distinguishable.
I begin by looking to pre-Ondrasek II case law. In Fullerton Lumber Co. v. Torborg, 274 Wis. 478, 483-84, 80 N.W.2d 461, 464-65 (1957), our supreme court stated:
*656Where a mandate directs the entry of a particular judgment, it is the duty of the trial court to proceed as directed. The trial court may, however, determine any matters left open, and in the absence of specific directions, is generally vested With a legal discretion to take such action, not inconsistent with the order of the upper court, as seems wise and proper under the circumstances.... In cases in which the appellate court reverses the decree and remands the cause to the lower court for further proceedings, that court can carry into effect the mandate of the appellate court only so far as its direction extends; but the lower court is left free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision. [Citations omitted.]
I take this to mean that, upon remand, a trial court has discretion to act, as long as such action is "not inconsistent with the order of the upper court." Id. at 483, 80 N.W.2d at 464. Because Fullerton allows a trial court some leeway to act, even where the appellate court "directs the entry of a particular judgment," id., I believe that the mandate from the appellate court must unequivocally restrict the action to be taken on remand to the purely ministerial; if the remand leaves any room for doubt about the scope, then the trial judge has discretion to act within the boundaries circumscribed by that remand.
My understanding of Fullerton also leads me to distinguish the Ondrasek II situation from that presented here. In Ondrasek II, this court found error in the trial court's determination that the appellate mandate precluded a substitution of judge. Ondrasek II, 133 Wis. 2d at 180, 394 N.W.2d at 913. In essence, the trial court there was faulted for reading our remand too restric*657tively, see id. at 183,394 N.W.2d at 914, and, in so doing, concluding that the trial court had less, rather than more, discretion. Given the Fullerton rule, which presumptively vests discretion in a trial court upon remand, Ondrasek II stands for the proposition that a trial court commits error if it interprets an appellate mandate too narrowly, that is, if it mistakenly concludes that the trial court has no discretion on remand.
Here, however, the majority reads Ondrasek II to act as both sword and shield. I am not convinced that it applies equally to a situation where the trial court assumes that it has discretion to act and accordingly assumes that a substitution request is proper. I am unpersuaded that this court's mandate in the original Rusilowski appeal was sufficiently particular (and limiting) to justify the application of Ondrasek II. I would not hold the trial court hostage to the words "on the present record," which occurred early in the decision but not again at its end.7
In light of the legislative intent to create an unqualified right to substitution after a reversal requiring "further proceedings," we should hot, in any event, be in the business of deciding with finality what will be required *658by the trial court to "redecide" any evidentiary issue. Had the trial court denied the request for substitution, implicitly conceding the "specific action" scope of the remand, I would agree with my colleagues. The trial court did not do so. The fact that the trial court granted the request, in spite of some reservations, changes the ground rules, and I cannot find merit in the conclusion that the trial court misused its discretion. Section 801.58(7), Stats., reads, in part, that "[i]f upon an appeal . . . the appellate court. . . reverses . . . the judgment or order ... in a manner such that further proceedings in the trial court are necessary, any party may file a request [for substitution]." (Emphasis added.) The words "in a manner such that" need not be read to say "and directs that." For this court to find the trial court in error for granting a request for substitution based upon our determination of what we think might be required in fully dealing with the remand is unwarranted and unnecessary.
I note that the Wisconsin Court of Appeals Style Manual (rev. June 8, 1990) at page eight states the following: "Include directions to the trial court in the paragraph immediately above the mandate line." Here, that paragraph of our original decision read: "We remand this case and direct the probate court to redecide the issue of whether the Cuccios are entitled to specific performance under the proper allocation of the burden of proof. If the court decides again in favor of the Cuccios, it is, in the exercise of its discretion, free to confirm its award of attorney's fees or permit Bernard to challenge the reasonableness of the award." In re Rusilowski, No. 91-0524, unpublished slip op. at 7 (Wis. Ct. App. Jan. 22, 1992).