In June 2004, W. Lee Morrison, Jr. “Morrison”, suffered cardiac arrest following surgery and died shortly thereafter. Since then, two of Morrison’s sons, Alexander Morrison “Alex” and W. Lee Morrison, III “Lee”, have filed several lawsuits against a third son and the executor of their father’s estate, Ralph Morrison “Ralph”, contending that they were entitled to certain portions of their father’s estate. This is the third appearance of cases involving Morrison’s estate in our appellate courts. In Morrison v. Morrison ,1 Alex filed a caveat to Ralph’s petition to probate Morrison’s 1998 will, alleging undue influence and seeking revocation of the will. The caveat was rejected, the will was admitted to probate, and the Supreme Court of Georgia affirmed.2 While that suit was pending, Alex and Lee brought suit against Ralph, individually and as executor of Morrison’s estate, alleging breach of fiduciary trust, constructive trust, intentional interference with a gift, and fraud.3 The trial court granted summary judgment in favor of Ralph, finding that the non-fraud claims were barred by res judicata and collateral estoppel and that the fraud claims were barred by OCGA § 51-5-7 2 and 51-5-8.4 In Morrison II , the Supreme Court of Georgia reversed the trial court’s ruling.5 On remand, the trial court again granted summary judgment to Ralph. It is from that order that Alex and Lee “appellants” bring the instant appeal. Because we agree with appellants that they had insufficient notice that the trial court would rule on the previously filed motion for summary judgment, we reverse the judgment and remand the case to the trial court for further proceedings consistent with this opinion. A brief summary of facts were stated in Morrison II as follows: Morrison gave Ralph a power of attorney in 1986 and 1995, and executed wills in 1988, 1995, and 1998. In 2003, Morrison made notes of potential changes on a copy of the 1998 will and, two weeks before he died in June 2004, mailed them to his attorney, Gil McLemore. While Morrison was incapacitated prior to his death, Ralph discovered a copy of those notes along with a handwritten message addressed to him, which stated, “If anything happens to me before I am able to write my new will, please see and abide by the changes I have inked in on this 1998 will. I know you will do as I ask of you. Please do as I ask/legal or not.”6 The letter further instructed, “I have 7 or 8 money market accounts at Buckhead Community Bank. They are to be given to the persons sic name they are in, except Jim,7 that account is to be divided equally between Alex, Ralph and Lee. . . .” Morrison’s and Jim’s joint account contained $60,000. Before his father’s death, Ralph distributed the proceeds of this account as follows: $10,000 each to Alex and Lee, and $40,000 to himself. Morrison’s 1998 will devised his Sea Island home to Ralph. Morrison’s handwritten notes provide that the Sea Island home be divided equally between Ralph and Alex; that a rental home in Atlanta be devised to Lee “provided he can afford it”; and that his Atlanta residence be devised to Alex. After receiving Morrison’s notes on June 13, 2004, McLemore prepared a draft will, incorporating his requested changes. Morrison died several days later without executing the new will, and the aforementioned litigation ensued.
1. In their first enumeration of error, appellants contend that the trial court erred by ruling upon legal issues contrary to their prior dispositions by the Supreme Court of Georgia in violation of the law of the case rule. They argue that Ralph raised numerous arguments in the Supreme Court other than those explicitly addressed in Morrison II and that the Supreme Court could have been persuaded by some or all of those arguments. If it had been so persuaded, it could have affirmed the trial court’s judgment under the “right for any reason rule.” According to appellants, since the Supreme Court was not so persuaded —and did not affirm the judgment as right for any reason —then the trial court was precluded from being so persuaded in all subsequent proceedings because, like its explicit rulings, the Supreme Court’s implicit rulings are “the law of the case.” We do not agree.
