In August 1990, Lillian Thomas Bagley died testate. In 1997, William Troy Bagley (Bagley), the decedent’s son, petitioned the probate court to be appointed executor of his mother’s estate. The probate court denied the petition, and Bagley appealed to superior court. The superior court denied Bagley’s petition and dismissed his appeal on the grounds that it was barred by res judicata, and Bagley filed this appeal. For reasons that follow, we affirm.
The relevant facts are as follows. The decedent was survived by three children: Bagley, Elizabeth Robertson and Jane Burns. In accordance with the will, Robertson was appointed executrix of the decedent’s estate. 1 The will named Bagley as the successor executor in the event that Robertson died.
In July 1991, Burns petitioned the probate court to remove Robertson as executrix. The probate court denied Bums’ petition. In January 1992, Bagley also petitioned the probate court to remove Robertson as executrix and to appoint him as successor executor. The probate court denied Bagley’s petition, and Bagley appealed de novo to superior court, which held a jury trial. The jury found that Robertson should be removed as executrix, and on April 21, 1993, the trial court entered judgment on that verdict. Apparently, no successor executor was appointed at that time. In 1994, Bagley once again petitioned the probate court to be appointed executor, arguing that his mother had nominated him as the successor executor in her will. Following a hearing, the probate court denied Bagley’s petition. In an order dated September 14,1995, the probate court noted that Bagley and Robertson
have irreconcilable differences, and the Court believes that based upon their animosity and the likelihood that such animosity will continue, that the best interest of the Estate will be served by [Bagley] not serving as the successor or alternate Executor of the Estate.
The probate court then appointed Jackson Harris, County Administrator, as the administrator of the estate. Harris subsequently was replaced by J. Bryant Durham, Jr., who is a party to this appeal.
Bagley never appealed the September 1995 order, nor did he seek to have either Harris or Durham removed as administrator. In June 1997, however, Bagley filed a third petition with the probate court, seeking appointment as executor. Once again, Bagley pointed
to the fact that he had been named successor executor in his mother’s will.
1. Bagley contends that res judicata does not bar his 1997 petition to be appointed executor because the “issues in [the 1997] petition have not been previously ruled upon.” This contention lacks merit.
The doctrine of res judicata is codified in OCGA § 9-12-40, which provides that
[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.
In order for res judicata to apply, several prerequisites must be satisfied: (1) identity of the cause of action; (2) identity of the parties; and (3) a previous adjudication on the merits by a court of competent jurisdiction.
Fowler v. Vineyard,
Here, the prerequisites for res judicata have been satisfied. In both the 1994 and 1997 petitions, Bagley sought appointment as executor of his mother’s estate. Thus, both petitions involved the same “cause of action.” Both petitions also involved the same parties. 2 Moreover, the 1995 order of the probate court constituted a final order as Bagley failed to appeal the order within 30 days. See OCGA §§ 5-3-2 (a) and 5-3-20.
Bagley maintains that res judicata does not bar his 1997 petition
because it is based upon a different theory from the 1994 petition.
3
However, “[u]nder a plea of res judicata a former adjudication is a bar as to all matters placed in issue or which might have been placed in issue between the same parties, or their privies, upon the same cause of action.” (Punctuation and emphasis omitted.)
King u. Plum-mer,
Finally, Bagley argues that res judicata should not bar his 1997 petition because the facts have changed. With regard to res judicata,
[a] former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants.
(Punctuation omitted.)
King,
supra at 711-712 (1). In its 1995 order, the probate court concluded that it was not in the best interest of the estate for Bagley to serve as executor because of the dissension between Bagley and Robertson. Bagley presents no evidence whatsoever that the contentiousness has dissipated. Thus, the probate
In so holding, we do not suggest that once a probate court appoints an administrator, the beneficiaries under the will are precluded from seeking the removal of that administrator. To the contrary, the beneficiaries may still petition the probate court for such a change, and under OCGA § 53-7-148, the probate court has authority to remove the administrator. See
In re Estate of Dunn,
2. In view of our holding in Division 1, we need not address Bag-ley’s remaining enumerations of error.
Judgment affirmed.
Notes
The will first named the decedent’s husband as executor, but he predeceased his wife.
The fact that a successor administrator was appointed does not change the identity of the parties. See
State of Ga. v. Brookins,
Bagley asserts that the 1994 petition was based “entirely upon his rights as the successor executor in the will,” and that the 1997 petition was based “entirely on the request of the majority of the heirs to have [him] appointed” executor. We note, however, that in his 1997 petition, Bagley asserted that he had been named successor executor in his mother’s will and his attorney referred to this fact at the hearing on that petition.