In re Estate of Rogers

748 S.E.2d 505, 323 Ga. App. 869
CourtCourt of Appeals of Georgia
DecidedSeptember 13, 2013
DocketA13A1319
StatusPublished

This text of 748 S.E.2d 505 (In re Estate of Rogers) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Rogers, 748 S.E.2d 505, 323 Ga. App. 869 (Ga. Ct. App. 2013).

Opinion

McMlLLIAN, Judge.

Laura Nell Rogers (“mother”) and Mike Wilson (collectively referred to as “appellants”) filed this appeal from an order of the Superior Court of Oglethorpe County dismissing their appeal from an order of the probate court granting letters of administration to appellee Cheryl Ann Rogers. The basis for the dismissal was that appellants were not parties to the probate court proceedings and therefore lacked standing to appeal the probate court’s order. Because the record shows that appellants fully participated in the probate court proceedings and were recognized as parties by that court, we must reverse.

The pertinent facts show that Billy Joel Rogers died intestate on June 23, 2012. Wilson, who is Rogers’ first cousin, filed a petition for temporary letters of administration and was appointed temporary administrator of the estate on July 5, 2012. On July 11, 2012, Rogers’ wife, appellee Cheryl Ann Rogers (“wife”), as Rogers’ surviving spouse and claiming to be his sole heir at law, filed a petition for temporary letters of administration and a separate petition for permanent letters of administration, seeking the expanded powers enumerated in OCGA § 53-12-261.

Notice of the petition for letters of administration was properly published in the appropriate legal organ. That notice specifically provided, inter alia, that all objections to the petition had to be made in writing and filed with the court on or before August 20, 2012. On August 7, 2012, appellants filed an objection to the appointment of the wife as the temporary administrator of the estate, contending, among other things, that the wife had relinquished her right to inherit from Rogers’ estate in a prenuptial agreement. This objection was filed by attorney Lane Fitzpatrick “Attorney for [the mother] and Mike Wilson.” On August 21, 2012, the day after the deadline for filing objections to the wife’s appointment as administrator of the estate, the probate court judge issued a rule nisi, noting an objection [870]*870had been filed and setting a hearing on the petition for September 14, 2012. Appellants were both listed as persons who should receive a copy of the rule nisi, although it was noted that an address for the mother had not been listed on the objection. On August 30, 2012, the probate court issued an order rescheduling the hearing. Again, this rule nisi provided that each appellant was to be served with notice of the hearing, and service on the mother was directed to “Attorney Lane Fitzpatrick.”

A hearing was held on September 27, 2012. The wife, who was represented by attorney Dennis Helmreich, was present along with her counsel. Wilson was also present, along with attorney Lane Fitzpatrick, hut the mother did not attend the hearing.

At the beginning of the hearing, the probate court judge stated as follows: “We take notice of the objection filed by — that was filed by the mother and the temporary administrator, but we are here on the permanent administration.” Fitzpatrick then made a motion to disqualify Helmreich from representing the wife because Helmreich had been subpoenaed to testify at the hearing. Following argument by both sides, the probate court denied the motion based on “hardship.”

Helmreich then proceeded with his opening statement, arguing that the prenuptial agreement in which Rogers and the wife relinquished their right to inherit had been supplanted by another agreement signed shortly after they were married in which each had been granted the right to inherit from the other’s estate. Helmreich concluded his statement by requesting that the wife’s petition to administer the estate be granted without having to call witnesses or present evidence since no obj ection had been timely filed. The probate court judge stated that the hearing would continue.

Both sides then presented evidence and witnesses, and Helmreich, who had prepared both the prenuptial and post-nuptial agreements, testified. At the conclusion of the hearing, Fitzpatrick moved to have Wilson appointed as administrator, asserting in essence that the original prenuptial agreement in which the parties had waived their inheritance rights should be enforced. Helmreich moved the court to grant the wife’s petition, arguing that the wife was Rogers’ sole heir at law and had the right to be appointed administrator of Rogers’ estate “especially when . . . [tjhere have been no objections filed for her petition for permanent letters of administration.”

Following the hearing, the probate court issued an order granting the wife’s petition to be appointed administrator of Rogers’ estate. The order also recited that the appellants had filed an objection on August 7, 2012. The certificate of service shows that the order was served on Wilson and Fitzpatrick “Attorney for [the mother].”

[871]*871Appellants filed an appeal to the superior court from the probate court’s order, stating it was filed on behalf of the mother, identifying her as Rogers “sole heir” and Wilson, as temporary administrator of Rogers’ estate. The wife filed a motion to dismiss the appeal in the probate court, asserting that the appellants were not parties to the probate court proceedings and thus lacked standing to appeal the probate court’s order to the superior court. The certificate of service shows that the motion to dismiss was served on the mother and Wilson at street addresses, but was not served on Fitzpatrick. However, the clerk of the probate court certified that the motion had been faxed to Fitzpatrick.

On October 8, 2012, the probate court issued an order indicating that it had read the motion to dismiss and that it was transmitting both the appeal and motion to the superior court. This order was served on Wilson and on Fitzpatrick, as attorney for the mother.

The wife reasserted her motion to dismiss the appeal based on lack of standing after the case was transmitted to the superior court. The superior court granted the motion, finding that, pursuant to well-established Georgia law, the wife, being the sole heir at law, had the right to unanimously select herself to serve as the administrator of Rogers’ estate. Further, the superior court found that no objections to the petition for letters of administration had been filed following proper publication of notice, and that Wilson and the mother were “neither plaintiffs nor defendants, neither petitioners nor caveators, in the Probate Court.” Thus, the superior court concluded that Wilson and the mother lacked standing to appeal the probate court’s order appointing the wife administrator of Rogers’ estate. Accordingly, the court dismissed the appeal with prejudice and awarded the wife her costs, including reasonable attorney fees incurred in the matter.1

1. Citing Garren v. Garren, 316 Ga. App. 646 (730 SE2d 123) (2012), and Bruce v. McMullen, 199 Ga. App. 239, 240 (404 SE2d 620) (1991),2 appellants contend that the superior court erred by dismiss[872]*872ing their appeal based on lack of standing because they became parties to the probate court proceeding with standing to appeal the probate court’s ruling when the probate court served them with notice of the proceeding, pointing specifically to the rule nisi orders the probate court issued prior to the hearing on the wife’s petition for letters of administration.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Booker v. Booker
648 S.E.2d 445 (Court of Appeals of Georgia, 2007)
Knowles v. Knowles
188 S.E.2d 800 (Court of Appeals of Georgia, 1972)
Samples v. Samples
21 S.E.2d 601 (Supreme Court of Georgia, 1942)
Mitchell v. Pyron
17 Ga. 416 (Supreme Court of Georgia, 1855)
Swift v. Thomas
28 S.E. 618 (Supreme Court of Georgia, 1897)
Underwood v. Stanford
85 S.E. 102 (Supreme Court of Georgia, 1915)
Bruce v. McMullen
404 S.E.2d 620 (Court of Appeals of Georgia, 1991)
Garren v. Garren
730 S.E.2d 123 (Court of Appeals of Georgia, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
748 S.E.2d 505, 323 Ga. App. 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-rogers-gactapp-2013.