Atkinson v. Firuccia
| Decision Date | 23 October 2018 |
| Docket Number | WD 81595 |
| Citation | 567 S.W.3d 190 |
| Parties | Daniel Allen ATKINSON, et al., Appellants, v. Sheryl Ann FIRUCCIA, et al., Respondents. |
| Court | Missouri Court of Appeals |
Jonathan Sternberg, Kansas City, for Appellants.
Mark T. Kempton, Sedalia, for Respondent Sheryl Firuccia.
Before Division One: Lisa White Hardwick, Presiding Judge, Edward A. Ardini, Jr., Judge and Thomas N. Chapman, Judge
Daniel and Bobby Atkinson ("Appellants") brought this will contest in the Circuit Court of Johnson County1 challenging the rejection by the probate division of one of four purported last wills and testaments of Bertha Don Carlos ("Mrs. Don Carlos"). The circuit court granted summary judgment in favor of Mrs. Don Carlos’s adopted daughter, Sheryl Firuccia ("Firuccia"), holding that Appellants' claims were barred by res judicata based on a judgment entered in an earlier will contest that found Mrs. Don Carlos died intestate. This appeal follows. The judgment of the circuit court is affirmed.
Mrs. Don Carlos died in September 2009 and left behind an adopted daughter and several extended family members. In March 2010, the probate division issued letters to the public administrator to administer the estate intestate. The next week, the first publication of notice granting letters on the estate occurred. In the following months, family members presented to the probate division four last wills and testaments purportedly executed by Mrs. Don Carlos. These wills were dated in June 1991, April 2003, February 2007, and August 2007. Each will contained a provision disinheriting Mrs. Don Carlos’s adopted daughter, Firuccia, and devised Mrs. Don Carlos’s property to other extended family members. Those family members included nephew Donald Atkinson and his three sons, Russell Atkinson, Daniel Atkinson, and Bobby Atkinson (collectively "the Atkinsons"); nephew Lyle Quick, nephew Glen Riffle, and niece Lena Zvacek (collectively "the Quicks"); sister-in-law Mary Ella Anderson and her children, Richard Anderson and Debbie Anderson Kvasnicka (collectively "the Andersons"); and nephew Donald Riffle and niece Rosella Keck.
The August 2007 Will was the first to be presented for probate, and it was admitted. The June 1991 Will was the next to be presented; it was rejected. Donald Riffle then filed a petition with the probate division requesting the August 2007 Will "be declared revoked and the order admitting said purported will to probate be vacated" and requesting the February 2007 Will be admitted to probate. Finally, Daniel Atkinson filed a petition requesting the April 2003 Will be admitted if the August 2007 Will was rejected. The probate division took no action regarding these petitions.
Meanwhile, Firuccia and the Quicks filed separate petitions under section 473.0833 with the circuit court contesting the validity of the August 2007 Will and requesting a finding that Mrs. Don Carlos died intestate. The Atkinsons and the Andersons filed answers denying the invalidity of the August 2007 Will. The Andersons also filed a counterclaim/cross-claim requesting that the circuit court admit the previously rejected June 1991 Will or, alternatively, the April 2003 Will that was pending before the probate division.
The circuit court determined that the challenge to the probate division’s rejection of the June 1991 Will was untimely, rendering that rejection final. The parties then stipulated that the August 2007 Will was not "the last will and testament of Mrs. Don Carlos."
In response to the elimination of the June 1991 and August 2007 Wills, and there being no other wills before the circuit court, Firuccia moved for summary judgment on her claim that Mrs. Don Carlos died intestate. The Atkinsons opposed the motion, arguing the April 2003 and February 2007 Wills were still pending before the probate division creating a genuine issue of material fact on the question of whether Mrs. Don Carlos died intestate. The circuit court disagreed, noting that the issues presented in a will contest are framed by the petition and answer and that those wills had not been brought before the court in the will contest. The circuit court granted the motion and entered judgment finding that Mrs. Don Carlos died intestate.
The circuit court’s judgment was affirmed by this Court in Quick v. Anderson , 503 S.W.3d 242 (Mo. App. W.D. 2016).
Following this Court’s affirmance of the judgment finding that Mrs. Don Carlos died intestate, activity was re-initiated in the probate division regarding the April 2003 Will. The probate division found, after conducting an evidentiary hearing, that the April 2003 Will was destroyed at Mrs. Don Carlos’s direction when she executed the February 2007 Will and that there was insufficient evidence that Mrs. Don Carlos lacked testamentary capacity or was susceptible to undue influence when she did so. As a result, the April 2003 Will was rejected.4
The next month, Appellants filed a new will contest in the circuit court challenging the probate division’s rejection of the April 2003 Will. Firuccia () answered, alleging as an affirmative defense that res judicata barred Appellants' claims. Firuccia moved for summary judgment arguing that Appellants were seeking a finding that Mrs. Don Carlos did not die intestate; that in the earlier will contest, Firuccia had sought a finding that Mrs. Don Carlos died intestate; that Appellants were parties to that earlier will contest; and that the earlier will contest resulted in a final judgment on the merits that Mrs. Don Carlos died intestate. Appellants replied, asserting that res judicata was inapplicable because this will contest concerned the validity of the timely presented April 2003 Will, a claim that had not been addressed in the earlier litigation. The circuit court denied the motion, finding that "there [were] genuine issues of material fact."
Firuccia filed a motion for reconsideration, reiterating that res judicata applied to "every point properly belonging to the subject matter of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time." Appellants opposed the motion, arguing that the April 2003 Will could not have been brought before the circuit court in the previous proceedings because, at the time, it had not yet been admitted or rejected by the probate division. The circuit court granted Firuccia’s motion to reconsider and entered summary judgment against Appellants. This appeal followed.
Appellants argue that the circuit court erred in granting Firuccia’s motion for summary judgment. Our review of "the grant of summary judgment [is] de novo. " White v. Emmanuel Baptist Church , 519 S.W.3d 917, 921 (Mo. App. W.D. 2017). The moving party is entitled to summary judgment if it "establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law." Id. One of the ways in which "[a] defending party may establish a right to summary judgment [is] by showing ... that there is no genuine dispute as to the existence of the facts necessary to support movant’s properly pleaded affirmative defense." Id.
To facilitate our discussion, we provide a brief overview of the procedures for admitting a will to probate and for contesting the admission or rejection of a will before the circuit court.
"A will, to be effective as a will, must be presented for and admitted to probate." § 473.050.1. Any interested person who "contests the validity of a probated will[ ] or prays to have a will probated which has been rejected by the probate division" must do so before the circuit court within six months of the will’s admission or rejection (or "the first publication of notice of granting of letters on the estate of the decedent, whichever is later"). § 473.083.1. "[T]he purpose of such a proceeding is to determine whether there is a will or not[.]" Anderson v. Wittmeyer , 834 S.W.2d 780, 784 (Mo. App. W.D. 1992).
A will contest must "be exercised in strict compliance with the statutory provisions." Quick , 503 S.W.3d at 251. The petition and answers thereto "frame the issues of intestacy or testacy or which writing or writings constitute the decedent’s will." § 473.083.7. "[T]he opponent of a will may choose to challenge the validity of the purported will and also attempt to establish another will in its place." Quick , 503 S.W.3d at 251. The court is required not "to establish all wills" but to "decide the issues framed by the petition and answer." Id. at 251-52. The circuit court’s judgment "shall determine the issues ... [and] is final[.]" § 473.083.7.
Res judicata bars the same parties from re-litigating a claim that has been previously decided on the merits by a final judgment, or from later raising a claim "stemming from the same set of facts" that could have been raised in the first suit.5
Johnson Controls, Inc. v. Trimmer , 466 S.W.3d 585, 591 (Mo. App. W.D. 2015). "The doctrine precludes not only those issues on which the court in the former case was required to pronounce judgment, but [ ] every point properly belonging to the subject matter of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time." Chesterfield Village, Inc. v. City of Chesterfield , 64 S.W.3d 315, 318 (Mo. banc 2002). A corollary of res judicata is that parties cannot collaterally attack the merits of a final judgment entered in a previous proceeding. See Wright v. Bartimus Frickleton Robertson & Gorny PC , 364 S.W.3d 558, 564 (Mo. App. W.D. 2011) (...
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