Mary Teresa Duncan v. Etta Dagnan Moreland
This text of Mary Teresa Duncan v. Etta Dagnan Moreland (Mary Teresa Duncan v. Etta Dagnan Moreland) 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.
Opinion
SECOND DIVISION BARNES, P. J., MILLER, and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 6, 2013
In the Court of Appeals of Georgia A13A1491. DUNCAN v. MORELAND et al.
BARNES, Presiding Judge.
Mary Teresa Duncan appeals from the order of the trial court granting summary
judgment to her aunts, Etta Sue Moreland and Wilma E. Wilson, and dismissing her
challenge to the probate court’s order admitting her grandmother’s will to probate in
solemn form. Upon our review and for the reasons that follow, we affirm.
On May 27, 2008, Moreland and Wilson, two of the decedent’s three
daughters, filed a petition to probate their mother’s will. The will appointed
Moreland, Wilson, and their sister, Evelyn Duncan, as co-executors. Duncan was
served with a copy of the petition and will by certified mail. On September 16, 2009,
Evelyn Duncan’s daughter, Teresa, filed a caveat to the will alleging that she and her
mother possessed a later-dated valid will, that the decedent had been under undue influence and lacked the mental capacity to execute the will propounded by Moreland
and Wilson, that Evelyn Duncan should be appointed executor of the decedent’s
estate, and that the petition to probate the will should be denied.
After a hearing on the caveat, the trial court found in favor of Moreland and
Wilson and on December 16, 2011, entered an order accepting their petition to
probate the will and issued Letters Testamentary to them as co-executors . However,
on December 28, 2011, the trial court entered an order rescinding Moreland and
Wilson’s Letters Testamentary. The probate court’s order instructed that “no business
on behalf of [the decedent’s] estate shall be conducted from the date of said order .
. . until new Letters of Testamentary have been issued by the court.” The court set the
date of February 1, 2012, to appoint the three sisters as co-executors.
On January 31, 2012, Moreland and Wilson filed a “Petition for Removal
and/or Denial of Appointment of Co-Administrat[or]” alleging that Evelyn Duncan
was unfit to serve as a co-administrator of the estate. Following court-ordered
mediation that ended in an impasse, Moreland and Wilson withdrew their petition to
deny Evelyn Duncan’s appointment as co-administrator of the estate. Thereafter, on
July 2, 2012, Teresa Duncan filed a “Motion for Clarification” to determine whether
it was “the intent of the Court on December 28, 2011 to rescind the entire Order of
2 December 13, 2011 and for the Court to retain jurisdiction of the matter until further
proceedings could be carried out.” Moreland and Wilson apparently maintained that
Duncan did not have the right to appeal the validity of the will because the December
28th order appeared to only rescind the Letters Testamentary, not the court’s finding
that the will was valid. Duncan asked that the court re-enter its December 13, 2011
order admitting the will to probate, but name all three sisters as co-executors rather
than just Moreland and Wilson.
The following day, July 3, 2012, the probate court issued Letters Testamentary
to Moreland, Wilson and Evelyn Duncan, naming the three sisters co-executors of
their mother’s estate. The document further stated that on “July 3, 2012 at a regular
term of the Probate Court, the last Will and Testament dated May 11, 2005 of [the
decedent] . . . was legally proven in solemn form and was admitted to the record by
order.” (Emphasis supplied.)
The probate court initially set a hearing on the motion for clarification on July
18, 2012, but then rescheduled it for August 6, 2012. It also entered an order
purporting to grant Duncan an additional five days to appeal the probate court’s July
3rd order, should the court find against her in ruling on the motion for clarification.
3 Following the hearing, the probate court entered an order on August 8, 2012, finding
that the date that triggered the running of Duncan’s 30 days to appeal was
not December 28, 2011 because those letters issued were rescinded by the court on December 28, 2011. The correct date for the appellate process to begin should be July 3, 2012 when the corrected Letters of Testamentary . . . to [Moreland, Wilson, and Evelyn Duncan] were issued by this court.
On August 9, 2012, Duncan filed her appeal from the July 3, 2012 order to
superior court. Subsequently, Moreland and Wilson filed a motion for summary
judgment in which they maintained that Duncan’s appeal was untimely because it was
filed more than 30 days after the probate court’s December 13, 2011 order admitting
the will into probate. They also argued that the probate court did not have authority
to extend the period for filing the appeal. The superior court granted the motion,
agreeing that Duncan’s notice of appeal was untimely. It found that:
On December 13, 2011 the Probate Court . . . entered an order finding the last will and testament of [the decedent] to be valid. On December 16, 2011 the Probate Court also appointed Moreland and Wilson as co- administrators. On December 28, 2011 the Probate Court rescinded and vacated only the appointment of Moreland and Wilson but left in place the order of December 13, 2011 finding the will valid. No appeal was
4 filed by the Appellant/Respondent from the Probate Court’s order of December 13, 2011 until August 9, 2012. . . . [T]he appeal of the Probate Court’s ruling that the will is valid was filed more than thirty days after it was filed. The time to appeal could not be extended by the Probate Court through its order of August 8, 2012. (Emphasis supplied.)
On appeal, Duncan contends that the time to file an appeal did not begin
running until the probate court made its final decision on the case, and thus, contrary
to the trial court’s ruling, the December 13, 2011 order was not a final appealable
order because in its December 28, 2011 order, the probate court had rescinded the
Letters Testamentary it issued to Moreland and Wilson. Duncan further maintains
that, because the Letters Testamentary were rescinded, an appeal of the December 13,
2011 order could not have proceeded because as of December 28, 2012 there was no
one to represent the estate.
“An appeal shall lie to the superior court from any decision made by the
probate court, except an order appointing a temporary administrator.” OCGA § 5-3-2
(a) (2). Pursuant to OCGA § 5-3-20 (a), “[a]ppeals to the superior court shall be filed
within 30 days of the date the judgment, order, or decision complained of was
entered.” “The requirement is jurisdictional, so that a superior court lacks jurisdiction
5 when such an appeal is filed beyond the time allowed by law.” Fortson v. Tucker, 307
Ga. App. 694, 695 (705 SE2d 895) (2011). “Granting extensions of time as permitted
under certain circumstances by the Civil Practice Act does not apply to periods of
time which are definitely fixed by other statutes.” McClure v. D. O. T., 140 Ga. App.
564 (231 SE2d 532) (1976). In such instances, “[n]ot even the trial court is
empowered to extend the period of time for filing the notice of appeal.”(Citation and
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