Morrison v. Morrison ( 2008 )

BENHAM, Justice,

dissenting.

I dissent because the claims at issue here constitute an unauthorized collateral attack on the 1998 will which has been held by the probate court as William Lee Morrison, Jr.’s last will and testament. Giving any kind of effect to the 2003 notes after the fact, including awarding damages on various theories such as breach of fiduciary duty, constructive trust, intentional interference with a gift, and fraud would usurp the probate court’s authority. In particular, I cannot join Division 3 of the majority’s opinion because I believe appellants’ (Alexander and Lee Morrison) fraud and non-fraud claims are barred by OCGA § 9-12-40¹ which codifies the doctrines of res judicata and collateral estoppel.

1. Res judicata bars re-litigation of claims that were brought or could have been brought in the original action in a court of competent jurisdiction when there is an identity of the parties and subject matter. Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545 (629 SE2d 260) (2006). Res judicata is applicable when there is (1) an identity of the parties or their privies, (2) an identity of the cause of action, and (3) previous adjudication on the merits by a court of competent jurisdiction. Karan, Inc., 280 Ga. at 546. In short, res judicata requires the litigant to bring all claims arising out of one set of circumstances in one action. Smith v. Maytag Corp., 216 Ga. App. 676 (2) (a) (455 SE2d 379) (1995).

(a) I disagree with the majority opinion’s conclusion that there is no identity of subject matter between the superior court action and the prior probate case barring the non-fraud claims under res judicata. Where separate legal actions are predicated on the same factual transaction, then there is an identity of subject matter such that the subsequent action is barred by res judicata. McCracken v. City of College Park, 259 Ga. 490 (2) (384 SE2d 648) (1989). Thus, res judicata precludes a party from asserting his claims “piecemeal” in separate actions when all the claims concern the same set of facts. Mobley v. Sewell, 226 Ga. App. 866, 868 (487 SE2d 398) (1997) (action to set aside deed on grounds of fraud, conspiracy and breach of contract was barred by res judicata where there was a previous superior court order denying claim of fraudulent conveyance and ordering property to be sold at public auction); Hill v. Wooten, 247 Ga. 737 (279 SE2d 227) (1981) (state court action barred by res judicata because it and the original federal court action concerned a “common nucleus of operative fact”).

The probate court determined that the 2003 notes did not revoke Williams’ 1998 will. Like the probate action, the superior court action turns on the effect of the 2003 notes, the only difference being that appellants assert new causes of action. However, a new suit asserting new claims or seeking new relief concerning the same facts already litigated is barred by res judicata. ChoicePoint Svcs. v. Hiers, 284 Ga. App. 640 (2) (644 SE2d 456) (2007) (where first suit and second suit were based on same subject matter and facts, second suit, which asserted new theories of relief, was barred by res judicata); Kenney v. Don-Ra, Inc., 178 Ga. App. 492 (1) (343 SE2d 779) (1986) (award of stock to husband in divorce action barred wife’s subsequent action against corporation and husband to compel distribution of one-half share of stock). Indeed, appellants, seeking consolidation of the superior court and probate actions admitted in their superior court complaint that both actions “involve common questions of law and fact as they relate to [Ralph’s] conduct and the post mortem disposition of Mr. Morrison’s assets.” Therefore, there is an identity of subject matter and appellants cannot proceed here merely because they have asserted new claims and theories of recovery.

(b) I disagree with the majority opinion’s conclusion that the fraud and non-fraud claims could not be pursued in probate court. The probate court has exclusive jurisdiction to probate a will and “all other matters and things as appertain or relate to estates of deceased persons.” Greenway v. Hamilton, 280 Ga. 652, 654 (1) (631 SE2d 689) (2006). See also Benefield v. Martin, 276 Ga. App. 130, 131 (622 SE2d 469) (2005) (probate court with subject matter jurisdiction may render decision on damages for fraud claims); Sherard v. Aldridge, 251 Ga. App. 445 (2) (554 SE2d 590) (2001) (allegations that certain items should have passed outside the will could be brought against the estate in probate court). Therefore, the probate court was a court of competent jurisdiction as required by the res judicata doctrine.

2.1 also believe the fraud-related claims are barred by collateral estoppel because the matters have been put in issue and litigated. The doctrine of collateral estoppel bars the re-adjudication of issues that have already been decided on the merits when there is an identity of the parties or their privies. Karan, Inc., 280 Ga. at 546. “[Collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, [the] issue may not be re-litigated, even as part of a different claim.” Shields v. BellSouth Advertising & Pub. Corp., 273 Ga. 774, 777 (545 SE2d 898) (2001) (plaintiffs federal discrimination claim was barred by collateral estoppel in federal court action where a prior superior court action reviewing an award of unemployment benefits found that plaintiffs termination was not motivated by his HIV status).

Here, the probate court heard evidence and issued an order finding that Lee was not represented by Ralph at the mediation² and that the settlement agreement which resulted from the mediation between Alexander and Ralph was unenforceable, in part, because it was not signed by Lee or anyone signing as Lee’s agent. As a consequence of that ruling, Alexander and Lee went to trial in the probate court, during which trial Lee repudiated any purported representation by Ralph and asserted under oath that he agreed with Alexander’s caveat which the probate court ultimately denied. Because the probate court decided that Ralph never represented Lee at the mediation and appellants never took issue with that ruling (see Morrison v. Morrison, 282 Ga. 866 (655 SE2d 571) (2008)) and because Lee repudiated Ralph’s representation in fact, appellants are barred by collateral estoppel from asserting a new cause of action for fraud³ based on Ralph’s statements purporting to represent Lee at mediation. ChoicePoint Svcs. v. Hiers, 284 Ga. App. at 641-642 (party who had sued and appealed denial of commissions on theory of breach of contract was barred from pursuing new action which sought to recover the same commissions under theories of reformation and quantum meruit).

Decided July 7, 2008. Caldwell & Watson, Harmon W. Caldwell, Harry W MacDou-gald, Floyd E. Propst III, Robert S. Carlson, for appellants. Jones Day, Gregory R. Hanthorn, Samantha R. Mandell, Paul, Hastings, Janofsky & Walker, Robert M. Martin, for appellees.

Accordingly, I would affirm the judgment of the trial court.

1 OCGA § 9-12-40 states, “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”

2 Specifically, the November 16, 2005 probate court order concerning enforcement of the settlement agreement stated, “And although there was some oral evidence that [Ralph] purported to represent Lee Morrison in mediation (heir Lee Morrison not being then present), neither the Agreement to Mediate nor the [Settlement] Memorandum bears [Lee’s] signature or the authorized signature of Ralph as [Lee’s] agent or representative with power of attorney.”

3 An essential element of fraud is a showing that the complainant was damaged. Rainey v. GAVFT Motors, 269 Ga. App. 479 (1) (604 SE2d 840) (2004). Inasmuch as the settlement agreement was not enforced, it begs the question as to how Lee or Alexander was damaged by the allegedly fraudulent statements made by Ralph regarding Lee’s representation. Nevertheless, appellants opined in their superior court complaint that “[h]ad Ralph stated that he did not represent Lee, the mediation could have heen postponed until Lee could have been present.” This argument is without merit because there is no evidence that the matter would have been settled had Lee been present and represented at the mediation. In fact, the probate court noted that Ralph’s sons, who were also beneficiaries of the 1998 will, were not represented at the mediation and there was no evidence that they had agreed to the terms of the settlement agreement which was required by OCGA § 53-5-25.