Jaysen McCleary v. Reliastar Life Insurance Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3395
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John Kennedy, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Gibbs Ferguson, *
*
Defendant-Appellee. *
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Submitted: April 20, 2012
Filed: June 4, 2012
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Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
John Kennedy sued attorney Gibbs Ferguson in federal district court asserting
diversity jurisdiction and alleging malpractice and constructive fraud related to
Ferguson's handling of Kennedy's father's estate. The district court found the matter1
not yet ripe because the estate was still open, no final distribution of the estate had
yet taken place, and Kennedy could still assert his rights in probate. We affirm the
judgment of the district court.
The Honorable Billy Roy Wilson, United States District Judge for the Eastern1
District of Arkansas.

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I.
Ferguson drafted a will that Kennedy's father, Eugene, executed in 2000.
Ferguson retained the original copy of the 2000 will in his law office. Ferguson then
drafted another will that Eugene purportedly executed in 2008. The 2008 will
expressly revoked all prior wills, and Eugene personally retained the original version
of the 2008 will. The 2000 will included a specific bequest to Kennedy in the form
of a $30,000 educational fund. The 2008 will included a specific bequest to Kennedy
of $1,000.
Eugene passed away in 2010, and Ferguson opened a probate estate filing the
2000 will in probate court. Ferguson also filed a verified petition swearing that the
2000 will was the "Last" will of Eugene Kennedy. The original version of the 2008
will was never located.
In 2011, Ferguson notified Kennedy's attorneys about the existence of the 2008
will and provided them with a copy of it. Kennedy would have received substantially
more from Eugene's estate pursuant to the Arkansas laws of intestacy than pursuant
to either will. Kennedy argues the copy of the 2008 will could have proven
revocation of the 2000 will, but would not, itself, have been admissible to control the
disposition of his father's estate. According to Kennedy, Ferguson's actions deprived
Kennedy of the benefit of a share of the estate pursuant to the intestacy laws of
Arkansas. Kennedy also argues that Ferguson's actions forced Kennedy to hire an
attorney and incur expenses related to asserting his interests and that Kennedy would
not have incurred these expenses had Ferguson handled probate differently.
Kennedy did not inject himself into the probate proceedings or mount a legal
challenge in those proceedings to press his views. Instead, Kennedy worked out a
settlement with Eugene's other heirs for $1.6 million and agreed, pursuant to the
terms of that settlement, not to challenge the 2000 will. After entering into the
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settlement agreement, however, Kennedy elected to bring the present diversity action
against Ferguson alleging constructive fraud and attorney malpractice. As of the time
of the district court proceedings in this matter, the estate remained open and no final
distribution had taken place.
Ferguson filed a motion to dismiss. The district court noted that procedures
existed pursuant to Arkansas law to permit Kennedy to challenge the 2000 will in the
probate proceedings. Ultimately, the district court concluded that, because the estate
remained open and no final distribution had occurred, Kennedy could still raise a
claim in those proceedings and, therefore, had not yet been injured. As a result, the
court concluded the federal action by Kennedy alleging malfeasance by Ferguson was
not yet ripe, and the court dismissed the complained without prejudice. The court,
however, noted the "Catch 22" situation that Kennedy had created for himself through
his chosen courses of action: the settlement agreement would not allow Kennedy to
mount a challenge in probate court without jeopardizing his substantial settlement
with the other heirs, but in the district court's view, the technical availability of such
an option meant the federal action was not ripe.
II.
"Standing and ripeness are sometimes closely related. In assessing ripeness,
we focus on whether the case involves 'contingent future events that may not occur
as anticipated, or indeed may not occur at all.'" Missouri Roundtable for Life v.
Carnahan, 676 F.3d. 665, 674 (8th Cir. 2012) (quoting 281 Care Committee v.
Arneson, 638 F.3d 621, 631 (8th Cir. 2011), other citation omitted). Both are
requirements for Article III subject matter jurisdiction, and we review de novo the
district court's dismissal of an action for lack of jurisdiction. Care Committee, 638
F.3d at 627.
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Kennedy asserts two arguments to contest the district court's ripeness
determination. First, he argues Arkansas law does not permit him to challenge the
2000 will in the probate proceedings because: (1) most types of legal challenges to
a will must be brought within "three months . . . after the date of the first publication
of the notice of the admission of the will to probate," Ark. Code Ann. § 28-40-
113(b)(2)(B), and those three months have passed; and (2) although challenges based
upon the discovery of "another will of the decedent" generally may be brought at any
time prior to final distribution of the estate, Ark. Code Ann. § 28-40-113(b)(1),
Kennedy asserts a mere copy of a will is insufficient to trigger the longer limitations
period. Second, he argues that regardless of how the probate proceedings end and
regardless of whether he could still raise issues in the probate proceedings, he has
been injured simply by virtue of the fact that he was forced to spend more time and
resources on things such as attorney fees in an effort to secure a greater share of the
estate.
Regarding the first argument, we believe Arkansas law would allow Kennedy
to challenge the validity of the 2000 will using a mere copy of the 2008 will and that
such a challenge is not time barred. A mere copy of the 2008 will would be
insufficient to control the ultimate distribution of Eugene's estate and could not be
successfully entered into probate for that purpose. See Ark. Code Ann. § 28-40-
302(2)(A) (requiring proof that a will was still "in existence at the time of the death
of the testator" and stating that a copy, standing alone, provides insufficient proof).
The reasons that the mere copy would be insufficient for that specific purpose,
however, do not suggest that reliance upon the copy would be prohibited for the
separate purpose of establishing the revocation of a prior will.
In Arkansas, a testator may revoke a will through execution of a subsequent
will or by physically destroying it. See Remington v. Roberson, 98 S.W.3d 44, 46–47
(Ark. Ct. App. 2003); Garrett v. Butler, 317 S.W.2d 283, 284–85 (Ark. 1958). In the
absence of an original version of a will—when all that is available is a copy—it is
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presumed that the testator physically destroyed the original with the intent to revoke
it. Remington, 98 S.W.3d at 46–47. A copy of a will may be entered into probate for
the purpose of controlling the ultimate distribution of an estate, but only if it is
accompanied by sufficient additional evidence to prove that the testator did not, in
fact, destroy the original version of the will reflected in the copy. Id.; see also Ark.
Code Ann. § 28-40-302(2). There is no allegation in the present case that any
evidence exists to rebut the presumption that Eugene Kennedy physically destroyed
the missing original version of the 2008 will. Accordingly, it would appear that
Kennedy is correct to the limited extent that he argues the 2008 cannot be admitted
into probate for the purpose of controlling the ultimate disposition of Eugene's estate.
The purpose of requiring an original version of a will rather than a copy is to
ensure that the testator did not, subsequent to execution of the will, express a different
testamentary intent by taking the affirmative action of physically destroying the
original version of the will—continued existence of an original version generally is
necessary to prove revocation by destruction has not taken place. See Garrett, 317
S.W.2d at 284. This purpose relates to the proof of events that occur after execution
of the will. And, as just stated, in the absence of an original version, purposeful and
affirmative destruction is presumed.
We find no authority suggesting that this purpose for requiring an original
version rather than a copy is somehow related to the inherent inability or infirmity of
a copy to prove the original and earlier fact of execution—the fact of legal
consequence in this case. Whether the 2008 will continued to represent Eugene's2
ongoing and final testamentary intent after he executed the 2008 will is relevant to
We make no comment regarding the rules of evidence that may apply in2
Arkansas state court and the general treatment of copies in lieu of originals as to all
documents offered as proof in all contexts in state court. The parties have neither
raised nor briefed any such issues. We constrain our analysis to the Arkansas cases
involving the issues expressly discussed herein.
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determining whether his estate should be distributed pursuant to an intestacy scheme
or pursuant to the 2008 will. Legal consequences flowing from events that occurred
after execution of the 2008 will, however, are immaterial for the purpose of proving
that Eugene expressly revoked the 2000 will at a particular moment in time by
executing the 2008 will. That act would have been final immediately upon execution
of the 2008 will regardless of whether Eugene subsequently destroyed the latter will.
Based on the foregoing, and in the absence of any controlling state authority
to the contrary, we hold that the longer limitations period applicable to challenges
based upon the discovery of "another will of the decedent" as set forth in Ark. Code
Ann. § 28-40-113(b)(1) applies, even if the challenge is supported by a mere copy of
the new will. Because Kennedy may still raise his challenge in probate, it is not
known whether he has suffered a cognizable injury and his claim, therefore, is not yet
ripe.
Regarding Kennedy's second argument, we find no cognizable injury in the
litigation-related costs Kennedy elected to incur to pursue legal remedies. In this
respect, Kennedy is no different than any party in any case who believes his or her
legal rights have been violated by another. While such expenses in many cases may
be compensable at the end of all proceedings for any number of reasons recognized
by statute or common law, such expenses are not injuries for purposes of assessing
the presence of Article III standing. See Diamond v. Charles, 476 U.S. 54, 70–71
(1986) ("[A]n injury that is only a byproduct of the suit itself does not mean that the
injury is cognizable under Art. III."); Proskauer Rose, LLP v. Blix Street Records,
Inc., 384 F. App'x 622, 624 (9th Cir. 2010) ("Nor does the fact of Straw's personal
liability to Proskauer for fees create standing to assert a malpractice claim."); W.R.
Huff Asset Mgmt. Co. v. Deloitte & Touche, LLP, 549 F.3d 100, 109 (2d Cir. 2008)
("[T]he recovery of its legal fees, which are a byproduct of the suit itself . . . cannot
serve as a basis for Article III standing."); Fair Hous. Council of Suburban
Philadephia v. Montgomery Newspapers, 141 F.3d 71, 78–79 (3d Cir. 1998) (stating
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in the context of an analysis of whether an advocacy organization enjoyed Article III
standing, "litigation expenses alone do not constitute damage sufficient to support
standing"); Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) ("An
organization cannot, of course, manufacture the injury necessary to maintain a suit
from its expenditure of resources on that very suit. Were the rule otherwise, any
litigant could create injury in fact by bringing a case, and Article III would present
no real limitation."). To hold otherwise would create an exception that swallows the
rule—any parties who at any time who believed themselves to be injured could claim
constitutional standing based solely on the expense of filing suit or even the expense
of the pre-suit act of consulting with an attorney. Pursuant to the American Rule
generally applicable to our nation's pay-your-own-way adversarial system of justice,
such impositions upon parties' time and treasure are not independently cognizable
injuries.
We affirm the judgment of the district court dismissing Kennedy's complaint
without prejudice.
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