Atkinson v. Firuccia
Atkinson v. Firuccia
Opinion of the Court
*192Daniel and Bobby Atkinson ("Appellants") brought this will contest in the Circuit Court of Johnson County
FACTUAL AND PROCEDURAL BACKGROUND
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 473.083
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 ,
Subsequent Will Contest
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.
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 (among others) 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 *194have 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.
STANDARD OF REVIEW
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 ,
DISCUSSION
Will Contests
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 ,
A will contest must "be exercised in strict compliance with the statutory provisions." Quick ,
Res Judicata Bars Appellants' Subsequent Will Contest
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.
*195Johnson Controls, Inc. v. Trimmer ,
Appellants initiated this will contest for the purpose of establishing that the April 2003 Will-rejected by the probate division-was Mrs. Don Carlos's last will and testament. Indeed, that is the purpose of a will contest. See § 473.083.7 (A will contest determines "intestacy or testacy or which writing or writings constitute the decedent's will."). However, the ability of Appellants to now litigate the validity of the April 2003 Will is not without limitation and, relevant to this appeal, does not extend to collaterally attacking the judgment entered in the earlier will contest. See Bugg v. Rutter ,
The judgment entered in the initial will contest concluded that Mrs. Don Carlos died intestate, i.e., without a valid will. See In re Rogers' Estate ,
Appellants nevertheless argue that the prior declaration of intestacy is no impediment to this will contest. They contend that res judicata only precludes re-litigation of claims that were brought or could have been brought in a previous action, and their "claim," concerning the April 2003 Will, could not have been raised in the first will contest because the April 2003 Will had not yet been admitted or rejected by the probate division.
In the context of res judicata , what constitutes a "claim" is broadly construed in order to protect parties from defending multiple lawsuits. See Johnson Controls , 466 S.W.3d at 593 ; see also King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints ,
As discussed above, the first will contest specifically encompassed and, more importantly, resolved the claim that Mrs. Don Carlos died intestate. See § 473.083.7. Although Appellants now fervently argue the validity of the April 2003 Will, it is notable that they made no effort during the almost five-year pendency of the initial will contest to urge action by the probate division on that will or to otherwise bring that will before the circuit court.
CONCLUSION
Appellants' will contest seeking a determination that the April 2003 Will was Mrs. Don Carlos's last will and testament is a collateral attack on the final judgment entered in the initial will contest declaring that she died intestate, and is barred by the doctrine of res judicata. The judgment of the circuit court is affirmed.
All concur.
Upon Appellants' application for a change of venue, this will contest was transferred to Cass County.
We borrow facts from the related appeal, Quick v. Anderson ,
All statutory references are to the Revised Statutes of Missouri 2000 as supplemented through August 27, 2016.
At a January 10, 2017, hearing before the probate division, the proponent of the February 2007 Will withdrew the request to admit that will to probate.
In determining whether res judicata applies, courts commonly examine whether the lawsuits at issue share four "identities": "(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) [ ] identity of the quality of the person for or against whom the claim is made." See Roy v. MBW Constr., Inc. ,
Missouri follows the Third Restatement of Property. See Denny v. Regions Bank ,
Appellants argue that the judgment of intestacy entered in the first will contest was simply a "default" finding made "at the time" and subject to being revisited later should other timely presented wills of Mrs. Don Carlos be admitted to probate. We are not persuaded to adopt this characterization. Acceptance of Appellants' view that the judgment of intestacy was simply a placeholder with no preclusive impact and subject to later revision would have rendered it, in effect, interlocutory and not a final judgment. This position is inconsistent with section 473.083.7 and finds no support in this Court's opinion in Quick .
Appellants could have brought the April 2003 Will before the circuit court prior to the probate division taking action on it. See, e.g. , Kleim v. Sansone ,
Although Appellants filed an answer to the Andersons' counterclaim/cross-claim admitting the allegations contained therein, which included an allegation that the 2003 Will be admitted if the 1991 Will was not, "the 2003 will was never raised again." Quick ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.