In re Estate of Brice

• Decision Date: 16 November 2007
• Docket Number: No. A07A1470.,A07A1470.
• Citation: 288 Ga. App. 449,654 S.E.2d 420
• Parties: In re ESTATE OF BRICE.
• Court: Georgia Court of Appeals

288 Ga. App. 449

654 S.E.2d 420

288 Ga.App. 449

In re ESTATE OF BRICE.

No. A07A1470.

Court of Appeals of Georgia.

November 16, 2007.

Michael E. Sumner, for appellant.

Jampol, Schleicher, Jacobs & Papadakis, Steven M. Jampol, Alpharetta, for appellee.

BERNES, Judge.

Janice B. Stout appeals from the probate court's dismissal of her caveat to the last will and testament of her mother, Margretta K. Brice, and petition for removal of her brother, Stephen Curtis Brice, as executor of their mother's estate. The probate court dismissed Stout's action without first conducting a hearing. Stout argues both that the probate court lacked the authority to dismiss the action and that it misapplied the law in so doing. For the reasons that follow, we affirm.

We review de novo the probate court's dismissal. Daly v. Mueller, 279 Ga.App. 168, 630 S.E.2d 799 (2006).

We sustain the dismissal if the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted in the complaint and if the movant establishes that the plaintiff could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Citation omitted.) Id.

The facts are as follows. Stout and Brice are the adult children of Margretta K. Brice, who passed away on November 6, 2005. On December 20, 2005, Brice, as executor of the estate, filed a petition to probate will in solemn form, proffering the last will and testament of the decedent. Brice and Stout were the sole beneficiaries under the will. Brice also filed an acknowledgment of service and assent to probate instanter executed by Stout.

On that same day, the probate court issued letters testamentary of the decedent's estate to Brice, as executor, and accepted the will for probate in solemn form. Pursuant to the terms of the will, Stout was to inherit a cash bequest of $100,000 and the rest, residue, and the remainder of the decedent's estate and property was devised to Brice in fee simple.

On September 6, 2006, Stout filed in the probate court a caveat and petition for removal of Brice as executor. Stout alleged that the probated will was invalid because her mother was in an advanced state of dementia at the time of its execution; that she and Brice had entered into a separate contractual agreement regarding the distribution of the estate; and that Brice used the contractual agreement to fraudulently induce her signature on the assent to probate, thereby committing fraud and/or a breach of fiduciary duty. Stout moved the probate court to dismiss Brice's petition to probate the will, thereby declaring the will void, or, alternatively, to find the alleged contractual agreement between the parties valid and enforceable; to remove Brice as executor of the estate and appoint an administrator to distribute the assets of the estate either according to the laws of descent and distribution (if it determined the will void), or pursuant to the terms of the alleged contractual agreement (if it determined the will valid); and to issue a restraining order prohibiting Brice from selling certain real property that had been part of the estate.

Brice filed a timely response to Stout's motion, in which he asserted the following relevant affirmative defenses: the probate court lacked subject matter jurisdiction to determine the enforceability of an alleged agreement between the parties to which the decedent was not a party; Stout failed to state a claim upon which relief could be granted; any challenge to the validity of the will was time-barred under OCGA § 53-11-6(b); Stout's execution of the assent to probate waived her claims; Stout was estopped from asserting her claims based upon her execution of the assent to probate; and Stout's claims were barred by her actual and/or constructive knowledge.

The probate court then issued two orders in the case. In the first order, which is the subject of the instant appeal, the probate court dismissed Stout's caveat based upon the fact that the decedent's will had been previously proven in solemn form and the letters testamentary had already been issued to Brice. The court specifically held that:

Janice Stout assented to the petition to probate in solemn form and therefore waived any objection to the petition. OCGA § 53-11-6. The [will] was proven in solemn form and Letters Testamentary were issued to Stephen Curtis Brice on December 20, 200[5].¹ The issue of devisavit vel non has been adjudged by Order of this Court dated December 20, 2005 and the issue is res judicata. Therefore, the caveat to the [will] is hereby dismissed.

. . .

[Stout] assented to the petition to probate in solemn form and is charged with the duty to exercise due diligence in doing so. Daniel v. Lipscomb, 225 Ga.App. 135, 483 S.E.2d 325 (1997). The petition to remove the executor and appoint an administrator is hereby dismissed.

(Punctuation omitted.)

In the second order, the probate court held that it lacked subject matter jurisdiction to consider the issues raised by Stout related to the validity and enforcement of the parties' alleged contractual agreement and Stout's request for equitable injunctive relief. It therefore transferred those issues to the superior court. Stout does not appeal the second order.

1. Stout argues that the probate court dismissed the caveat sua sponte and asserts that it did not have the authority to do so and, in any event, that the probate court misapplied the law governing the dismissal. We disagree.

As an initial matter, we note that although the probate dismissed Stout's caveat without a hearing, the grounds upon which it did so were raised by Brice in his answer. Nonetheless, the Georgia Constitution confers upon the probate court as a court of record the authority to "exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments." Ga. Const. of 1983, Art. VI, Sec. I, Par. IV. This authorization includes the authority to dismiss, sua sponte, a motion that the court can otherwise determine from the pleadings cannot succeed as a matter of law. See, e.g., Kelley v. Lymon, 279 Ga.App. 849, 850(1), 632 S.E.2d 734 (2006) (trial court authorized to dismiss a complaint on its own motion after finding that the plaintiff had not sought to diligently serve the defendant prior to the expiration of the statute of limitations when the defendant had raised the issue of defective service in his answer); Ga. Receivables v. Williams, 218 Ga.App. 313(2), 461 S.E.2d 280 (1995) (affirming the trial court's sua sponte dismissal of the plaintiff's complaint as time-barred after the defendant's answer placed plaintiff on notice of its intent to use the statute of limitation as an affirmative defense); Chip Kassinger, Inc. v. Steimer, 205 Ga.App. 349, 351(2), 422 S.E.2d 241 (1992) (dismissing a party sua sponte after discovering that no liability could extend to that party based upon the allegations in the plaintiffs' complaint); Ga. Receivables v. Kirk, 242 Ga.App. 801, 801-802(1), 531 S.E.2d 393 (2000) (granting defendant summary judgment sua sponte because the contract on which the plaintiff was suing was void as against Georgia public policy, even though defendant failed to raise the issue). Compare Gaw v. Telfair County Bd. of Commrs., 277 Ga. 157, 159(2), 587 S.E.2d 50 (2003) (reversing the sua sponte dismissal of potentially meritorious claims); Focus Healthcare Med. Center v. O'Neal, 253 Ga. App. 298, 299(a), 558 S.E.2d 818 (2002) (reversing trial court's sua sponte dismissal of an action based upon its own assertion of an affirmative defense that could have otherwise been waived by the defendant).

In the instant case, the pleadings affirmatively established that Stout's dismissed claims were fatally defective. Stout filed a caveat to her deceased mother's will nearly nine months after the will had been probated in solemn form by order of the probate court. "The probate of a will in solemn form, until reversed or set aside, is conclusive upon all the parties notified." (Citations and punctuation omitted.) Byrd v. Riggs, 209 Ga. 930(1), 76 S.E.2d 774 (1953). See also OCGA § 53-5-20; Dennis v. McCrary, 237 Ga. 605, 606(2), 229 S.E.2d 367 (1976). OCGA § 9-11-60(d)(2) provides the proper vehicle for setting aside a judgment based upon "[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant." Accord Marshall v. Russell, 222 Ga. 490, 495-496(3), 150 S.E.2d 667 (1966); Byrd, 209 Ga. at 930(4), 76 S.E.2d 774. Because Stout did not move to set aside the probate court's order pursuant to OCGA § 9-11-60(d), the probate court was authorized to dismiss the caveat and petition for removal.

Even if this Court were to construe Stout's filing as a motion to set aside, it remained subject to dismissal. See Herringdine v. Nalley Equip. Leasing, 238 Ga.App. 210, 211(1), 517 S.E.2d 571 (1999). By signing the letter of assent, Stout consented to the immediate probate of the will. And, the probate in solemn form conclusively "establish[ed] that the deceased died testate, that the paper propounded was [her] last will, that it was...