Lamb v

First Union Brokerage Servs., 263 Ga. App. 733, 589 S.E.2d 300 (2003). Buyer had no separate right to counterclaims which the buyer had asserted in a prior suit since the buyer had filed bankruptcy since the time the counterclaims were asserted; the counterclaims thus belonged to the buyer’s bankruptcy estate and so the bankruptcy trustee was authorized to dismiss them; res judicata barred the buyer from asserting the same claims in a later suit based on the dismissal of the counterclaims in the prior suit by the bankruptcy trustee. Lee v. Owenby & Assocs., 279 Ga. App. 446, 631 S.E.2d 478 (2006). Superior court properly upheld a second ALJ’s ruling that an employer was foreclosed from raising a claim for a credit for 20 weeks of wages already paid to the claimant, under O.C.G.A. § 34-9-243, as the employer was entitled to raise the issue no later than ten days prior to the original compensation hearing, and that issue could and should have been adjudicated, but was not, making the issue res judicata. Vought Aircraft Indus. v. Faulds, 281 Ga. App. 338, 636 S.E.2d 75 (2006). Claim by a company for fraud against a debtor brought for the first time in an adversary proceeding was barred by the doctrine of res judicata because the claim could have been brought in an earlier district court proceeding involving the same parties and the same facts. Omega Cotton Co. v. Sutton (In re Sutton), No. 07-06006, 2008 Bankr. LEXIS 2593 (Bankr. M.D. Ga. Oct. 2, 2008). Doctrine of res judicata, O.C.G.A. § 9-12-40, did not preclude a wife from bringing an action for damages based on her former husband’s breach of a settlement agreement that had been incorporated into a court order because such a 80 claim was separate and apart from a contempt action she brought based on his violation of the order. Jacob-Hopkins v. Jacob, 304 Ga. App. 604, 697 S.E.2d 284 (2010). How to raise res judicata question. — Question of res judicata must be raised by a plea to that effect and cannot be raised by demurrer (now motion to dismiss) when the facts do not appear in the petition. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952). Certified copies of record portions are required for proof of res judicata. Mayer v. Wylie, 229 Ga. App. 282, 494 S.E.2d 60 (1997). Under res judicata, a proper court’s judgment is 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 such judgment is reversed or set aside. Camp v. Lindsay, 176 Ga. 438, 168 S.E. 284 (1933); Scarborough v. Edgar, 176 Ga. 574, 168 S.E. 592 (1933), overruled on other grounds, Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939); Miles v. Johnson, 193 Ga. 492, 18 S.E.2d 831 (1942); Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946); C. Schomburg & Son v. Schaefer, 218 Ga. 659, 129 S.E.2d 854 (1963); Booker v. Booker, 107 Ga. App. 339, 130 S.E.2d 260 (1963); Williams v. Metropolitan Home Imp. Co., 110 Ga. App. 770, 140 S.E.2d 56 (1964); Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff ’d, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974). Patrick v. Simon, 237 Ga. 742, 229 S.E.2d 746 (1976). Requirement that court have competent jurisdiction. — It is fundamental that the legal liability of one person to another person can be ascertained only in an action brought against such person by the other in a court of competent jurisdiction. Colodny v. Krause, 141 Ga. App. 134, 232 S.E.2d 597, cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977). Identity of parties. — It is not required that all the parties in the two cases shall have been identical, but it is sufficient as to identity of parties if those by and against whom the defense of res 9-12-40 judicata is invoked in the latter case were real parties at interest or privies as to the controversy in the former case. Darling Stores Corp. v. Beatus, 199 Ga. 215, 33 S.E.2d 701 (1945); Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 458 S.E.2d 826 (1995). Trial court erred in granting a limited liability company summary judgment in the company’s ejectment action against a property owner on the ground of res judicata under O.C.G.A. § 9-12-40 because there remained a question of fact regarding whether the owner was a party to the prior action; the owner asserted and presented affidavit evidence supporting the claim that the trial court in the quiet title action lacked personal jurisdiction over the owner, thus creating a genuine issue of material fact regarding whether the owner was a party to the earlier litigation. James v. Intown Ventures, LLC, 290 Ga. 813, 725 S.E.2d 213 (2012). No privity between plaintiffs. — In a suit brought by the plaintiff alleging a violation of the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., the trial court erred in finding that the doctrine of res judicata barred the plaintiff ’s action because there was no privity between the plaintiffs in the prior lawsuit and the current action. Sampson v. Ga. Dep’t of Juvenile Justice, 328 Ga. App. 733, 760 S.E.2d 203 (2014). To prove a res judicata defense, a litigant need introduce only those parts of the record of the prior proceeding which are necessary to prove the defense. Boozer v. Higdon, 252 Ga. 276, 313 S.E.2d 100 (1984); Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 458 S.E.2d 826 (1995). Application of doctrine of res judicata may benefit plaintiff; if, for instance, the unsuccessful defendant in the prior suit wants to contest liability upon the judgment there rendered, and the plaintiff sets up the doctrine of res judicata and the conclusiveness of the judgment. Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981). Interest on child support arrearages. — When the issue of interest on past due child support was not put in issue and decided in a prior contempt proceeding related to a father’s failure to 81 Res Judicata (Cont’d) pay child support, res judicata did not bar a subsequent judgment for interest on the past due child support amounts; it is undisputed that O.C.G.A. § 7-4-12.1 applies retroactively. Dial v. Adkins, 265 Ga. App. 650, 595 S.E.2d 332 (2004). Issues which could have been litigated in first suit barred. — Georgia law of res judicata bars a second suit between the same parties involving not only those issues that were actually litigated, but in addition all issues which could have been litigated in the first suit between the parties. Wilson v. Auto-Owners Ins. Co., 791 F.2d 886 (11th Cir. 1986). Subject matter not identical in bank’s action to recover. — Res judicata did not bar a bank’s action against guarantors to recover the outstanding balances owed on promissory notes a development company executed because the subject matters in the bank’s action and an action condominium owners filed against the company and the bank, which filed a third-party-complaint against the guarantors, were not identical; the owners’ action concerned the company’s breach of the company’s obligations under mortgage documents, which triggered the guarantors’ obligation to indemnify the bank for the cost of the litigation, and the bank’s action concerned the guarantors’ breach of their contractual obligation to repay the company’s debt. Baxter v. Fairfield Fin. Servs., 307 Ga. App. 286, 704 S.E.2d 423 (2010). Claim for wrongful foreclosure was logically related to out-of-state action to collect on the same note, it was incumbent upon the plaintiff to file the plaintiff ’s compulsory counterclaim in that court, and the plaintiff ’s failure to do so precluded the plaintiff from attempting to recover in Georgia, the plaintiff ’s claim correctly being determined by the trial court to be barred by res judicata. Willis v. National Mtg. Co., 235 Ga. App. 544, 509 S.E.2d 403 (1998). Different legal theory to recover for same wrong not permitted. — Doctrine of res judicata will not permit one who first sought, unsuccessfully, to recover for 9-12-40 a wrong under a contractual theory to later seek to employ a tort theory to recover for that same wrong. Garrett v. Transus, Inc., 177 Ga. App. 844, 341 S.E.2d 494 (1986); Helmuth v. Life Ins. Co., 391 Ga. App. 574, 391 S.E.2d 412 (1990); Garrett v. Life Ins. Co., 221 Ga. App. 315, 471 S.E.2d 262 (1996). When victims of a fraudulent scheme who sued the perpetrator of the fraud under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., had previously unsuccessfully sued the perpetrator for fraud and related claims, judgment n.o.v. was properly entered in favor of the perpetrator because the victims’ claim was barred by res judicata and collateral estoppel as it should have been raised in their previous suits against the perpetrator which involved the same parties and the same subject matter. Austin v. Cohen, 268 Ga. App. 650, 602 S.E.2d 146 (2004). Despite a payee’s argument that a reformation claim could not have previously been filed because neither party foresaw that a contract claim could have been disposed of as it was, the argument was rejected as spurious, and because this argument ignored the fact that the payee filed a prior quantum meruit claim, which was predicated on the lack of an enforceable contract; hence, the payor obviously anticipated that the contract might not be entirely enforceable, and having done so, could have recognized the need to bring a reformation claim in the earlier action. ChoicePoint Servs. v. Hiers, 284 Ga. App. 640, 644 S.E.2d 456 (2007), cert. denied, 2007 Ga. LEXIS 499 (Ga. 2007). In order for the doctrine of res judicata to apply, or for a party to take advantage of the doctrine in a subsequent suit brought against that party after the termination of the first, there are three prerequisites to which the situation must conform. They are: (1) identity of parties; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. House v. Benton, 42 Ga. App. 97, 155 S.E. 47 (1930); Edwards v. Carlton, 98 Ga. App. 230, 105 S.E.2d 372 (1958); Lewis v. Price, 104 Ga. App. 473, 122 S.E.2d 129 (1961); Life & Cas. Ins. Co. v. Webb, 122 Ga. App. 82 344, 145 S.E.2d 63 (1965); Cincinnati, N.O. & T. Pac. Ry. v. Hilley, 118 Ga. App. 293, 163 S.E.2d 438 (1968); Lowe v. American Mach. & Foundry Co., 132 Ga. App. 572, 208 S.E.2d 585 (1974); Janelle v. Seaboard Coast Line R.R., 524 F.2d 1259 (5th Cir. 1975); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980); Barnes v. City of Atlanta, 186 Ga. App. 187, 366 S.E.2d 822 (1988); Crowe v. Congress Fin. Corp., 196 Ga. App. 36, 395 S.E.2d 321 (1990); Akin v. PAFEC Ltd., 991 F.2d 1550 (11th Cir. 1993). In order for the principles of res judicata to apply so as to bind a plaintiff as to any theory of the plaintiff ’s claim, the cause of action in both cases must be the same. Greyhound Lines v. Cobb County, 523 F. Supp. 422 (N.D. Ga. 1981), aff ’d, 681 F.2d 1327 (11th Cir. 1982). One must assert all claims for relief concerning the same subject matter in one lawsuit, and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to O.C.G.A. § 9-12-40. Lawson v. Watkins, 261 Ga. 147, 401 S.E.2d 719 (1991); Norman v. Farm Fans, Inc., 203 Ga. App. 97, 416 S.E.2d 374 (1992). Action under Quiet Title Act barred additional action. — Trial court did not err in ruling that a church’s prior quia timet action under the Quiet Title Act, O.C.G.A. § 23-3-60 et seq., barred an heir’s action against the church seeking title to the property because the prior action settled the church’s ownership interest in the property. Cartwright v. First Baptist Church of Keysville, Inc., 316 Ga. App. 299, 728 S.E.2d 893 (2012). Applicable to habeas courts. — Principle of res judicata contained in O.C.G.A. § 9-12-40 applies to the rulings and findings of habeas courts. Martin v. State, 228 Ga. App. 548, 492 S.E.2d 307 (1997). Judgment of the trial court denying the defendant’s motion for new trial and the court’s conclusion that affidavits were not newly discovered evidence but were cumulative of evidence presented at trial and the amended motion for new trial was res judicata and binding on the habeas court. Walker v. Penn, 271 Ga. 609, 523 S.E.2d 325 (1999). 9-12-40 Effect of new factual allegations. — Doctrine of res judicata will bar an action even if some new factual allegations have been made. Williams v. Summit Psychiatric Ctrs., 185 Ga. App. 264, 363 S.E.2d 794 (1987), cert. denied, 185 Ga. App. 911, 363 S.E.2d 794 (1988). Joinder of separate causes of action. — Rules governing res judicata do not compel one to join separate causes of action in order to escape the penalties of that doctrine. In order for the principles of res judicata to apply so as to bind a plaintiff as to any theory of the plaintiff ’s claim whether invoked or not, the cause of action in both cases must be the same. Spence v. Erwin, 200 Ga. 672, 38 S.E.2d 394 (1946). When a plaintiff has multiple dealings with a defendant, the law does not require that the plaintiff assert every separate claim for relief that the plaintiff may have against the defendant in one single lawsuit or risk losing the claim for relief forever, as would be the case if the joinder statute provided for mandatory rather than permissive joinder. Instead, the law requires that such a plaintiff must bring every claim for relief the plaintiff has concerning the same subject matter in one lawsuit. The plaintiff may join several claims for relief arising out of different subject matters in one lawsuit but the plaintiff is not required to do so and will not be penalized for making a strategic decision to the contrary. Lawson v. Watkins, 261 Ga. 147, 401 S.E.2d 719 (1991). Theory of virtual representation. — Doctrine of res judicata will not be applied on the theory of virtual representation when the original action is brought by a stranger to the subsequent action solely on the stranger’s own behalf to protect the stranger’s individual rights. Humthlett v. Reeves, 211 Ga. 210, 85 S.E.2d 25 (1954). Presumptions as to judgments regular on judgments’ face. — When a judgment is regular on the judgment’s face, the presumption is that there was sufficient evidence to authorize the judgment, and the judgment is conclusive as to the subject matter which it purports to decide until it is reversed or impeached for fraud; it cannot be attacked collaterally on 83 Res Judicata (Cont’d) account of any error or want of regularity in its exercise. Rowell v. Rowell, 214 Ga. 377, 105 S.E.2d 19 (1958). Effect of irregular or erroneous judgment. — When a court has jurisdiction, the court has a right to decide every question which occurs in the cause, and whether the court’s decision is correct or otherwise, the court’s judgment until reversed is regarded as binding in every other court. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946); Mitchell v. Arnall, 203 Ga. 384, 47 S.E.2d 258 (1948); Bentley v. Buice, 102 Ga. App. 101, 115 S.E.2d 706 (1960). Judgment of a court of competent jurisdiction, however irregular or erroneous, is binding until set aside. Morgan v. Department of Offender Rehabilitation, 166 Ga. App. 611, 305 S.E.2d 130 (1983). Irregular judgment defined. — Irregular judgment is one that is entered contrary to the manner of practice and procedure allowed by law in some material respect; after jurisdiction is once attached, mere errors or irregularities in the proceedings, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void. Rowell v. Rowell, 214 Ga. 377, 105 S.E.2d 19 (1958). When res judicata effect of issues cease. — Issues which are made, or which under the rules of law could have been made in the cause, cease to be res judicata when the judgment therein rendered is set aside in a court of competent jurisdiction. Saliba v. Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947). Motion to revive original judgment. — When a defendant is served, appears, and pleads in the original suit, a defendant cannot inquire into the merits of the original judgment on a writ to revive the judgment. It is not error to sustain a demurrer (now motion to dismiss) and strike the defendant’s answer in such a proceeding. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946). 9-12-40 Offering in defense to scire facias evidence existing prior to judgment. — On the general principle of res adjudicata, which applies equally to proceedings by scire facias as to any other action, and on the further ground that this method of reviving a judgment is merely a supplementary step in the original action, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and might have been presented in the former proceeding. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946). State court’s disposition of federal constitutional questions. — State courts are competent to decide federal constitutional questions and a state court determination upon the merits of such issues is res judicata absent an appeal through the state appellate system and ultimately to the United States Supreme Court. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff ’d, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974). State court’s foreclosure of the constitutional issue is res judicata upon the merits of the substantive issue as well as the procedural question concerning the method of entry of judgment. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff ’d, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974). In a 42 U.S.C. § 1983 case arising from a traffic accident in which a driver had previously filed a state case, a federal district court did not err by granting summary judgment on the driver’s claims on the basis of res judicata under O.C.G.A. § 9-12-40. The state court had issued a decision on the merits of the driver’s claims, the driver conceded that the state court was a court of competent jurisdiction that could have decided the § 1983 claims, and the driver’s contention that a litigant was not required to assert federal claims in state court was without merit. Endsley v. City of Macon, No. 08-13279, 2008 U.S. App. LEXIS 24003 (11th Cir. Nov. 20, 2008) (Unpublished). 84 Pendent state claim retained by federal court. — If a federal court would have retained jurisdiction of a pendent state claim had the claim been raised, then a subsequent action in state court would be barred by res judicata. Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977); Hardy v. Georgia Baptist Health Care Sys., 239 Ga. App. 596, 521 S.E.2d 632 (1999). Relationship of claims in state action to prior federal action. — After a brokerage firm was found not guilty of violating the Securities Exchange Act of 1934 in a federal action, subsequent claims of negligence and breach of fiduciary duty brought in a state court are barred under O.C.G.A. § 9-12-40 as these claims ought to have been litigated in the federal action. NcNeal v. Paine, Webber, Jackson & Curtis, Inc., 249 Ga. 662, 293 S.E.2d 331 (1982). Trial court did not err in granting summary judgment to a city in a police officer’s suit on the basis that, pursuant to the doctrine of res judicata, a prior federal action by the police officer barred the police officer’s claims regarding the city’s failure to promote the police officer on two occasions in 2004 promotions; however, the police officer’s claims based on the failure to promote in December 2005 and November 2006 were not barred by res judicata because the city did not meet the city’s burden of affirmatively establishing that the police officer could have raised these claims, which were based on separate events, in the federal case. Thus, the trial court erred in granting summary judgment to the city as to the 2005 and 2006 promotions. Neely v. City of Riverdale, 298 Ga. App. 884, 681 S.E.2d 677 (2009), cert. denied, No. S09C1925, 2010 Ga. LEXIS 28 (Ga. 2010). Rationale for not applying res judicata. — When it does not apply the res judicata statute, the court must be convinced that the underlying purposes of the res judicata rule are advanced rather than defeated by not applying the rule. Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977). State court must apply same rules used by federal court. — When state claims which ‘‘could have been raised’’ in 9-12-40 federal litigation would have been pendent had they been presented to the federal court, the state court, in applying its res judicata statute, will use the same rules that the federal court would have used in determining whether it would exercise pendent jurisdiction. Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977). Attempt to relitigate federal court dismissal of federal statutory action. — Federal district court’s dismissal of a case with prejudice, on the grounds that a federal antidiscrimination statute cannot be applied against the states, is an adjudication on the merits, and not a jurisdictional disposition. Accordingly, the litigant is barred from relitigating the matter in state court. Similarly, a claim against the state alleging a violation of the federal civil rights statute, 42 U.S.C. § 1983, is barred by the doctrine of res judicata, because it could and should have been presented to the original federal court. Morgan v. Department of Offender Rehabilitation, 166 Ga. App. 611, 305 S.E.2d 130 (1983). Using federal civil rights act to attack state judgments. — Civil Rights Act, 42 U.S.C. §§ 1971 et seq., 1983, is not a vehicle for attack upon final state court judgments. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff ’d, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974). Attacks on original judgments in alimony cases. — Under doctrine of res judicata, a party is not estopped from questioning the validity of an earlier judgment granting temporary alimony when the original judgment, rendered in a previous litigation between the same parties, was based upon a different cause of action from a subsequent proceeding for contempt. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946). Party is not estopped from questioning the validity of an earlier judgment granting temporary alimony under the doctrine of res judicata since the original judgment, rendered in previous litigation between the same parties, was based upon a different cause of action from a subsequent proceeding for contempt. Powell v. 85 Res Judicata (Cont’d) Powell, 200 Ga. 379, 37 S.E.2d 191 (1946). Second action for divorce based on different acts from first action. — Party who has once filed an action for divorce on the ground of cruel treatment, which suit resulted in a verdict and decree adverse to the libelant, is not barred from thereafter filing a second petition on the same ground, but based on different acts, all of which were committed since the date of the former trial. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940). Prior judgment vesting custody of minor in mother. — When custody of a minor child was vested in the mother by prior judgment, it was conclusive against the father and was res judicata in habeas corpus proceeding by father. Levens v. Edge, 217 Ga. 418, 122 S.E.2d 728 (1961). Deprivation proceedings. — Unappealed deprivation orders of the juvenile court may be used to establish that the children were deprived (now ‘‘dependent’’) within the meaning of former O.C.G.A. § 15-11-94(b)(4)(A)(i) (see now O.C.G.A. §/15 11-310); since the parents did not appeal the deprivation decision regarding their children, they were bound by the determination that their children were deprived (now ‘‘dependent’’) under O.C.G.A. §§ 9-12-40 and 9-12-42. In the Interest of C.M., 258 Ga. App. 387, 574 S.E.2d 433 (2002). Issue of legitimacy of a child. — Legitimacy of a child is a matter for decision during the divorce proceedings. This issue is res judicata and cannot be raised in a subsequent proceeding to modify the divorce decree. Roberson v. Fooster, 234 Ga. 444, 216 S.E.2d 273 (1975). When the legitimacy of a child was recognized in prior divorce proceedings, from which no appeal was taken, that issue was res judicata and could not be raised by the mother in a paternity action in which she sought adjudication that a man other than her former husband was the father of the child. Macuch v. Pettey, 170 Ga. App. 467, 317 S.E.2d 262 (1984). When a divorce decree reflected a finding that the defendant was the child’s natural father, the issue of paternity could not be relitigated in a subsequent con- 9-12-40 tempt action against a defendant to recover child support arrearage. Department of Human Resources v. Hambrick, 216 Ga. App. 606, 455 S.E.2d 120 (1995). Paternity action not barred by prior adjudication in action to recover support payments. — Paternity action, where blood tests appeared to establish that the prospective father was the biological father of the child was not barred by a prior adjudication in an action brought by the Department of Human Resources to recover the sum expended on behalf of the child, in which a third party acknowledged paternity of the child, under principles of res judicata or collateral estoppel. Miller v. Charles, 211 Ga. App. 386, 439 S.E.2d 88 (1993). When an order of dismissal entered in a previous Uniform Reciprocal Enforcement of Support Action expressly stated that the issue of paternity was not decided, the issue was not res judicata. Department of Human Resources v. Gelinas, 216 Ga. App. 561, 455 S.E.2d 76 (1995). Divorce decree determined paternity. — When a final judgment and decree entered in a divorce action established that the defendant was the father of the minor child and set forth visitation rights and child support obligations, this prior judgment constituted a binding determination of paternity so that the defendant is barred by the doctrine of res judicata from again litigating the issue of paternity. Department of Human Resources v. Hurst, 208 Ga. App. 792, 432 S.E.2d 236 (1993). Divorce decree determined ownership of insurance policy. — Res judicata applied to bar husband’s action seeking reformation of a life insurance policy to show him as owner when the husband had the opportunity to litigate that issue in the divorce proceeding wherein the policy was awarded to his wife. Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 458 S.E.2d 826 (1995). Estoppel from setting aside accepted benefits of divorce decree. — Party litigant who accepts benefits under a divorce decree is estopped to set the decree aside. Guess v. Guess, 242 Ga. 786, 248 S.E.2d 528 (1979). Jury needed to settle issue of res judicata. — A court is not authorized to 86 settle the issue raised in a proper plea of res adjudicata without the intervention of a jury, though, in a proper case, it might direct a verdict. Davenport v. Southern Ry., 42 Ga. App. 160, 155 S.E. 340 (1930). Court properly sustained a plea of res judicata when in a former suit between the same parties in the same court, concerning the same cause of action, a petition identical in language was dismissed on general demurrer (now motion to dismiss) on the ground that the petition set forth no cause of action, and the judgment sustaining the demurrer in the previous case was not excepted to. Sudderth v. Harris, 51 Ga. App. 654, 181 S.E. 122 (1935); Smith v. Bird, 189 Ga. 105, 5 S.E.2d 336 (1939); Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952); Smith v. Southeastern Courts, Inc., 89 Ga. App. 789, 81 S.E.2d 226 (1954); Dykes v. Dykes, 214 Ga. 288, 104 S.E.2d 430 (1958). Res judicata barred a teacher’s second action against a school district arising from the teacher’s claims that the district breached the parties’ agreement as to the teacher’s resignation and that the agreement was fraudulently induced by the district, as there was identity of parties and subject matter between the two actions, and the teacher had an opportunity in the first action to fully litigate the issues on the merits; although the first action named the ‘‘Rome City Schools,’’ the school system had vigorously defended that action and there was identity with the school district, which was the named party in the second action. Kaylor v. Rome City Sch. Dist., 267 Ga. App. 647, 600 S.E.2d 723 (2004). Widower could not relitigate claims for compensatory and punitive damages, based on the claim that the father-in-law had broken the verbal promise to give the widower a portion of life insurance proceeds to help defray the deceased wife’s burial costs, as the matter had been previously resolved by summary judgment in favor of the father-in-law, which decision was affirmed on appeal; such a decision was binding, pursuant to O.C.G.A. § 9-11-60(h), in the subsequent trial with respect to whether a promise had been made and broken as to the disposition of the life insurance proceeds and the wid- 9-12-40 ower was barred from raising the issues relating to those damages by the doctrines of collateral estoppel and res judicata under O.C.G.A. § 9-12-40. Hardwick v. Williams, 272 Ga. App. 680, 613 S.E.2d 215 (2005). Trial court correctly ruled that the claims against the third-party defendants were barred by res judicata because there was identity of the first and second causes of action, identity of the parties or their privies, a prior adjudication by a court of competent jurisdiction, and the assignee’s managing partner and primary stockholder testified at deposition that the damages sought in the second suit were the same damages sought in the first suit. Bostick v. CMM Props., 327 Ga. App. 137, 755 S.E.2d 895 (2014). One who objects to setting a part of the statutory homestead by a referee in bankruptcy is not, by reason of that fact, estopped by res judicata from enforcing the lien of a judgment in one’s favor, based upon a note waiving the benefits of one’s homestead exemption. Rosenthal v. Langley, 180 Ga. 253, 179 S.E. 383, appeal dismissed, 295 U.S. 720, 55 S. Ct. 916, 79 L. Ed. 1674 (1935). Suit for rent following another suit for rent not barred. — When in first suit the landlord merely sought and won judgment for past due rent, the first suit did not act as res judicata of the landlord’s second suit for rent becoming due after the first suit. Lowenberg v. Ford & Assocs., 165 Ga. App. 753, 302 S.E.2d 433 (1983). Application for partition following decree of cotenancy. — Prior verdict and decree of cotenancy did not estop the defendant from applying for a partition, no such question being involved in the original suit. Roberts v. Federal Land Bank, 180 Ga. 832, 181 S.E. 180 (1935). Action based on cotenancy barred by cotenants’ divorce decree. — When matters of alimony and property interests between the parties are decided in a divorce, by consent or otherwise, O.C.G.A. § 9-12-40 operates to bar subsequent litigation between the parties as cotenants of a claim for rents which accrued prior to the divorce. White v. Lee, 250 Ga. 688, 300 S.E.2d 517 (1983). 87 Res Judicata (Cont’d) Return of prisoner’s property. — When a prison inmate’s motion for return of personal property in the inmate’s criminal case had been denied and appealed directly, the ruling was res judicata, and the inmate was estopped from seeking return of that property in any other court action involving the same defendants. Hooper v. Harris, 236 Ga. App. 651, 512 S.E.2d 312 (1999). Order confirming or refusing to confirm a judicial sale, if unexcepted to, is a final and conclusive judgment to the same extent as any other adjudication by a court of competent jurisdiction. Hurt Bldg., Inc. v. Atlanta Trust Co., 181 Ga. 274, 182 S.E. 187 (1935). Effect of judgment cancelling fraudulent deed. — Judgment in an equitable action for cancellation of a deed alleged to have been obtained by fraud did not bar a later action to establish a lost security deed and note and to foreclose the deed and note. Eaton v. Weatherby, 239 Ga. 795, 239 S.E.2d 8 (1977). Cause of action on account held not barred. — When a judgment in a prior action determined only that the plaintiff ’s petition set out no cause of action for equitable accounting, but did not consider whether the defendant had a valid cause of action on account against the plaintiff, the doctrine of res judicata is inapplicable to the filing of such cross action by the defendant. Eubanks v. Electrical Wholesalers, Inc., 116 Ga. App. 56, 156 S.E.2d 502 (1967). Defamation action was precluded by res judicata because the plaintiff could have raised the claims in a prior action in which the plaintiff obtained a judgment against the defendant for breach of agreements concerning the plaintiff ’s purchase of the defendant’s medical practice and for tortious interference with the plaintiff ’s practice. Doman v. Banderas, 231 Ga. App. 229, 499 S.E.2d 98 (1998). Tax suits. — Res judicata was not applicable to suits involving real property tax assessments brought in separate years. Henry County Bd. of Tax Assessors v. Bunn, 217 Ga. App. 350, 457 S.E.2d 256 (1995). 9-12-40 Judgment of a court of another jurisdiction in the same cause of action between the same parties is res judicata of all questions that could have been heard and determined in the case in which the judgment was rendered. Gillis v. Atlantic C.L.R.R., 52 Ga. App. 806, 184 S.E. 791 (1936). Under the full faith and credit clause of the United States Constitution, a judgment of a court of competent jurisdiction in Tennessee, if properly proved, may have the effect of former adjudication in matters pending in the courts of this state. Roadway Express, Inc. v. McBroom, 61 Ga. App. 233, 6 S.E.2d 460 (1939). Action for continuing nuisance not barred by prior nuisance action. — Homeowner’s nuisance action against a county based on the county’s failure to maintain a deteriorating retaining wall was not barred by res judicata based on the owner’s prior nuisance action for diminution in value arising out of a failure to maintain a storm water drainage system because the present suit was for a continuing nuisance. DeKalb County v. Heath, 331 Ga. App. 179, 770 S.E.2d 269 (2015). Res judicata applied. — Trial court correctly determined that res judicata barred an action against the defendant; the present action and the Tennessee action both sought damages against the defendant for alleged breach of contract for sale of the plaintiff ’s carpet business, both actions named the defendant as a party defendant, and the defendant made an appearance in the Tennessee action to contest jurisdiction. Chrison v. H & H Interiors, Inc., 232 Ga. App. 45, 500 S.E.2d 41 (1998). Pursuant to O.C.G.A. § 9-12-40, the trial court correctly dismissed the shareholders’ second corporate derivative action against the corporation and two of the corporation’s officers on the basis of res judicata because the second action was the same as the first, the parties were the same, except that the corporation, which had been a real party in interest in the first case, had been added as a party-defendant, the first case was decided by a court of competent jurisdiction, and the first case was decided on the 88 merits adversely to the shareholders since the shareholders failed to exhaust the corporation’s internal corporate remedies. Grable v. Warren Hawkins Post of the Am. Legion, 264 Ga. App. 843, 592 S.E.2d 502 (2003). Former employee’s federal claims against a former employer were barred by the doctrine of res judicata, even though the state court in the employee’s prior action did not hold a hearing before dismissing the employee’s complaint under O.C.G.A. § 9-11-37(d)(1) because the employee completely ignored the employer’s discovery requests, failed to respond to the employer’s properly served motion for sanctions, and failed to request a hearing on the motion; thus, the state court was not required to hold a hearing before imposing the sanction of dismissal. Moten v. Alberici Constructors, Inc., 380 F. Supp. 2d 1355 (N.D. Ga. 2005). Because an agent’s complaint against a city arose out of their roles in a sludge disposal program and because the agent forewent an opportunity to file a permissive cross-claim in the property owners’ original litigation against the city and the agent, pursuant to O.C.G.A. § 9-12-40, res judicata barred the agent from bringing the claims in a subsequent action. Sani-Agri Servs. v. City of Albany, 278 Ga. App. 432, 629 S.E.2d 15 (2006). Appeals court agreed with the trial court that the doctrine of res judicata barred the negligence and breach of contract claims asserted by two property owners against a contractor as: (1) the claims were essentially identical to the allegations in a counterclaim filed in a prior Cherokee County action; (2) the parties in the two cases were identical for purposes of res judicata; and (3) the Cherokee County suit resulted in an adjudication on the merits. Perrett v. Sumner, 286 Ga. App. 379, 649 S.E.2d 545 (2007). In a 42 U.S.C. § 1983 case arising from a traffic accident in which the driver had filed an earlier state case that was decided on the merits, the driver’s federal claims were barred by res judicata under O.C.G.A. § 9-12-40 even though the driver had added a police chief and deleted a police department from the federal case. The driver’s claims against the po- 9-12-40 lice chief were predicated on the same operative facts relating to the traffic accident, and the driver could not avoid the application of res judicata by adding new parties. Endsley v. City of Macon, No. 08-13279, 2008 U.S. App. LEXIS 24003 (11th Cir. Nov. 20, 2008) (Unpublished). Renter’s suit asserting that the renter’s due process rights were violated in connection with the renter’s eviction after a bank’s foreclosure on the property the renter was leasing was barred under the doctrine of res judicata pursuant to 28 U.S.C. § 1738 and O.C.G.A. § 9-12-40 because the renter had already filed numerous suits against the bank and the other defendants, the claims in the instant suit arose out of the same nucleus of operative fact as the claims asserted in the earlier suits, the suits involved the same parties, and the decisions of the state and federal courts that ruled in those actions constituted final judgments on the merits. Vereen v. Everett, No. 1:08-CV-1969-RWS, 2009 U.S. Dist. LEXIS 27302 (N.D. Ga. Mar. 31, 2009). Plaintiffs’ claims against a limited liability company (LLC) and the company’s owners were res judicata and were barred by O.C.G.A. § 9-12-40 because the claims involved the same subject matter as the claims the plaintiffs raised in the plaintiffs’ second civil action against the LLC and the owners, the temporary termination of their water supply; thus, the LLC was entitled to summary judgment. Adams v. Tricord, LLC, 299 Ga. App. 310, 682 S.E.2d 588 (2009). Issues of fact remained as to whether title had not vested in transferees of real property from the debtor until within the reach-back period of 11 U.S.C. §§ 547 and 548, and a prior state court ruling did not have preclusive effect pursuant to O.C.G.A. § 9-12-40 or former O.C.G.A. § 24-4-42 (see now O.C.G.A. § 24-14-42). Boudreaux v. Holloway (In re Holloway), No. 10-03015, 2012 Bankr. LEXIS 1582 (Bankr. S.D. Ga. Mar. 30, 2012). Trial court correctly granted family members’ motion for summary judgment on the issue of res judicata as to any claim for an accounting prior to the date of a superior court judgment because the question of an accounting was previously liti- 89 Res Judicata (Cont’d) gated. Evans v. Dunkley, 316 Ga. App. 204, 728 S.E.2d 832 (2012). Superior court erred in granting a mother’s motion to dismiss a former partner’s petition to adopt the mother’s child because a judgment denying the mother’s motion to set aside the adoption decree was res judicata as to the validity of the adoption decree and the superior court that dismissed the partner’s petition for custody was not entitled to revisit the validity of the decree; although a superior court ultimately denied the mother’s motion to set aside as untimely, the application of the time bar set out in O.C.G.A. § 19-8-18(e) presupposed that the adoption was one authorized by and entered in accordance with § 19-8-18(b). Bates v. Bates, 317 Ga. App. 339, 730 S.E.2d 482 (2012). Trial court properly granted a homeowner’s association summary judgment and dismissed a development company’s third-party complaint asserting indemnity because in the main litigation the indemnity agreement was invalidated under O.C.G.A. § 13-8-2(b); thus, the third-party complaint was barred by res judicata. Kennedy Dev. Co. v. Newton’s Crest Homeowners’ Ass’n, 322 Ga. App. 39, 743 S.E.2d 600 (2013). Motion for new trial on evidentiary grounds. — Grant or denial of an ordinary motion for new trial upon evidentiary grounds may, like other decisions, form the basis of res judicata. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938). Doctrine of res adjudicata applies to claim cases as well as to other cases if the claim case in which such previous judgment was rendered involved the same cause of action as the pending litigation. Cox v. Hargrove, 205 Ga. 12, 52 S.E.2d 312 (1949). Application to fraudulent concealment case. — Res judicata was inapplicable to a fraudulent concealment case brought by lawyers against clients as the case was completely different from an earlier case brought by the lawyers against the clients in which the lawyers sued one of the clients for failing to pay 9-12-40 attorney fees pursuant to a contract; in the current case, the lawyers sued the clients for fraudulently concealing assets so that the lawyers were unable to collect the judgment obtained in the first case, while in the current case, the lawyers were not making a claim for unpaid attorney’s fees, which was the subject of the lawyer’s first suit, but instead, were making a claim for fraud regarding the alleged asset concealment, and the clients were not able to establish the first prerequisite for application of the doctrine of res judicata, which was identity of cause of action. Gerschick & Assocs., P.C. v. Pounds, 266 Ga. App. 852, 598 S.E.2d 522 (2004). Application to criminal cases. — Res judicata did not apply to require dismissal of a criminal action because the same issues had allegedly been raised in a prior civil case. Carter v. State, 231 Ga. App. 42, 497 S.E.2d 812 (1998). Defendant’s second motion to vacate a void judgment was properly denied as the motion was barred by the doctrine of res judicata and O.C.G.A. § 9-12-40 since the defendant could have challenged the sufficiency of the indictment against the defendant on the defendant’s direct appeal, and since the defendant’s arguments mirrored the arguments that the defendant had raised previously. Rehberger v. State, 267 Ga. App. 778, 600 S.E.2d 635 (2004). When a defendant filed a pro se petition for habeas corpus while the defendant’s request to file an out-of-time motion for a new trial was pending, the defendant’s decision to go forward with the habeas action precluded the defendant under O.C.G.A. § 9-12-40 from later relitigating an ineffective assistance claim at the hearing on the motion for a new trial. Spiller v. State, 282 Ga. 351, 647 S.E.2d 64 (2007), cert. denied, 552 U.S. 1079, 128 S. Ct. 812, 169 L. Ed. 2d 612 (2007). Application to probate proceedings. — Trial court erred by granting summary judgment to an estate executor in a suit asserting fraud and other claims brought by two siblings as the trial court incorrectly determined that the privileges set forth in O.C.G.A. §§ 51-5-7(2) and 51-5-8 applied to the fraud claims and neither collateral estoppel nor res judicata 90 barred the action since a prior probate court proceeding did not involve the same issues. Further, the probate court would have had no jurisdiction over the fraud and intentional interference with a gift claims. Morrison v. Morrison, 284 Ga. 112, 663 S.E.2d 714 (2008). Court of appeals did not err in holding that res judicata barred a daughter’s complaint for breach of contract against a widow because the relevant facts pled in the daughter’s prior attempt to set aside the year’s support granted to the widow on the basis of fraud were identical to those the daughter alleged in support of the breach of contract claim; the daughter’s fraud claim was determined on the merits on appeal to the superior court, and the daughter had a full and fair opportunity to have litigated any related claims against the widow in the action the daughter initially filed in the probate court. Crowe v. Elder, 290 Ga. 686, 723 S.E.2d 428 (2012). Misconception of available remedy in former action. — Doctrine of res adjudicata is not available as a bar to a subsequent action if the judgment in the former action was rendered because of a misconception of the remedy available or of the proper form of proceedings, and unless the former judgment was based upon the merits. Densmore v. Brown, 83 Ga. App. 366, 64 S.E.2d 78 (1951). Two simultaneously pursued causes of action. — If one is pursuing at the same time in different courts the same cause of action against the same defendant, an adjudication on the merits of one would conclude further action on the other. Jones v. Rich’s, Inc., 81 Ga. App. 841, 60 S.E.2d 402 (1950). Effect on principal of judgment for agent. — When the liability, if any, of the master to a third person is purely derivative and dependent entirely upon the principle of respondeat superior, a judgment on the merits in favor of the agent or servant is res judicata in favor of the principal or master though not a party to the action. This rule is an exemplification of the broader rule by which one whose liability is wholly derivative may claim the benefit of a judgment in favor of the person from whom the liability is derived, 9-12-40 if not based on grounds applicable only to the latter. Roadway Express, Inc. v. McBroom, 61 Ga. App. 223, 6 S.E.2d 460 (1939); Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975). Though a judgment in favor of a servant against a third party is res judicata in favor of the master, this is not to say that the master is bound by the servant’s judgment in order to use it as res judicata, for the master can still sue the third person for damages to the master’s vehicle or other property damaged in a collision, certainly if the former adjudication favored the servant and even when it went against the servant. Due process of law requires that the master, not having been a party to the prior adjudication, have the master’s day in court. Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975). Servant not in privity with master. — Although a master has privity with a servant and can claim the benefit of an adjudication in favor of the servant, a servant is not in privity with the master so as to be able to claim the benefit of an adjudication in favor of the master. Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975). Effect of bankruptcy judgment on company’s successors in interest. — Determination in bankruptcy judgment that corporation had not committed a fraud did not flow with the assets of the company to the company’s successors in interest, president, majority shareholder, and a new company, especially when fraud in that transfer on the part of such successors, who were not parties to the first suit, was alleged, and they could assert prior judgment as a bar to suit. Anderson Oil Co. v. Benton Oil Co., 246 Ga. 304, 271 S.E.2d 207 (1980). Authority of court at interlocutory hearing. — At an interlocutory hearing, the court has no authority to dispose of a plea of res judicata and if evidence was otherwise sufficient to warrant the exercise of the court’s discretion in granting the interlocutory injunction, the plaintiffs were entitled to such relief, even though the court, after the introduction of evidence at the trial term on the plea of res judicata, might be authorized to direct a 91 Res Judicata (Cont’d) verdict in favor of such plea. Perry v. Gormley, 183 Ga. 757, 189 S.E. 850 (1937). When settlement or compromise between parties enforced by court. — When there is an honest difference of opinion between parties, touching a disputed claim, and especially if the difference is of such a nature as to render it at all doubtful as to who is correct, any settlement or compromise of these differences will be enforced by the courts, and neither party will be allowed to defend by showing that the party was right in the party’s original contention. Mutual of Omaha Ins. Co. v. Morris, 120 Ga. App. 525, 171 S.E.2d 378 (1969). Arbitration proceedings. — Even though the plaintiff was not technically a party to a prior arbitration proceeding in which an award was made in connection with a home construction contract, because the plaintiff was a co-owner of the property and actively participated in the arbitration proceeding, the plaintiff, as well as the plaintiff ’s spouse, was barred by res judicata and collateral estoppel from proceeding upon a lawsuit based upon the same facts. Bennett v. Cotton, 244 Ga. App. 784, 536 S.E.2d 802 (2000). Court of Appeals erroneously held that the arbitrator, and not the court, should have decided whether arbitration was barred by res judicata as: (1) no presumption existed that an arbitrator was in a better position than a court to apply a legal doctrine such as res judicata; (2) the parties did not expressly reserve the issue for arbitration; and (3) there was no presumption under Georgia law that the application of a procedural bar such as res judicata was a matter to be determined exclusively by an arbitrator. Bryan County v. Yates Paving & Grading Co., 281 Ga. 361, 638 S.E.2d 302 (2006). Claims arising out of a county’s termination of a construction contract that the contractor sought to have arbitrated were barred by the res judicata effect of a previous arbitration; by agreeing to defer a claim for lost income and then moving to confirm the arbitration award, the contractor waived the lost income claims. Yates Paving & Grading Co. v. Bryan 9-12-40 County, 287 Ga. App. 802, 652 S.E.2d 851 (2007). Settlement with one insurer not res judicata as to other. — Denial of plaintiff ’s workers’ compensation claim by Board of Workers’ Compensation based on no liability stipulation and settlement entered into by the plaintiff and the plaintiff ’s employer’s workers’ compensation insurance carrier did not constitute res judicata as to whether the plaintiff ’s injury was compensable under the ‘‘Workers’ Compensation Act’’ in plaintiff ’s action to recover on the plaintiff ’s medical insurance policy which denied coverage for injuries compensable under the ‘‘Workers’ Compensation Act’’. Cantrell v. Home Sec. Life Ins. Co., 165 Ga. App. 670, 302 S.E.2d 415 (1983). Effect of not defensively pleading res judicata. — When the defendant, in answer to the plaintiff ’s petition, fails to file a plea of res judicata at the appropriate time, but relies upon res judicata as a ground for a motion to set aside a judgment, it should be overruled, since such matters are purely defensive and do not afford grounds to vacate or set aside the judgment. Walthour v. Mock, 102 Ga. App. 811, 117 S.E.2d 885 (1960). County residents’ challenge to a school board candidate’s residency qualification under O.C.G.A. § 45-2-1(1) and Ga. Const. 1983, Art. VIII, Sec. V, Para. II, was barred by res judicata because another challenger had raised the same challenge, and the challenge had been resolved against the challenger by the county’s board of elections. Lilly v. Heard, 295 Ga. 399, 761 S.E.2d 46 (2014). Summary judgment properly granted when res judicata defense pleaded. — When a protestant in a processioning proceeding pleads the defense of res judicata and moves for summary judgment on this ground, supporting the motion with the record of a prior processioning proceeding between the same parties concerning the same issue of boundary and in which the protestant obtained judgment in the protestant ’s favor, and the applicant made no contrary showing, a motion for summary judgment is properly granted. Souther v. Kichline, 124 Ga. App. 111, 183 S.E.2d 87 (1971). 92 Trial court erred by granting family members summary judgment based on res judicata to the extent the children’s action sought an accounting with respect to management of property after the prior judgment because the children’s prior suit for an accounting of funds received and expended while managing the property was different. Evans v. Dunkley, 316 Ga. App. 204, 728 S.E.2d 832 (2012). Res judicata did not apply to a denial of motion for summary judgment. — When the plaintiffs filed the plaintiffs’ negligence lawsuit in the superior court of one county and that court denied the defendants’ motion for summary judgment, the circuit court in the county to which the lawsuit was transferred did not err in reconsidering the defendants’ motion for summary judgment and granting the motion because nothing limits the number of times a party may make a motion for summary judgment and res judicata does not apply to a denial of a motion for summary judgment. Hubbard v. DOT, 256 Ga. App. 342, 568 S.E.2d 559 (2002). Default or summary prior judgments. — Prior judgments have res judicata applicability, even if they had been outright default or summary judgments, and the application of the doctrine of res judicata in this manner does not deprive a litigant of the litigant ’s right to ‘‘a day in court.’’ Fierer v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270 (1978). Doctrine of res judicata applies even if the earlier judgment is a default judgment or a summary adjudication. Morgan v. Department of Offender Rehabilitation, 166 Ga. App. 611, 305 S.E.2d 130 (1983); Quarterman v. Memorial Medical Ctr., 176 Ga. App. 92, 335 S.E.2d 589 (1985). Successful motion to dismiss may have res judicata effect. — If the demurrer (now motion to dismiss) that was sustained in a former suit went to the merits of the case, it may be relied on under a plea of res judicata. Avery v. Southern Ry., 47 Ga. App. 722, 171 S.E. 456 (1933); Sudderth v. Harris, 51 Ga. App. 654, 181 S.E. 122 (1935); Gamble v. Gamble, 204 Ga. 82, 48 S.E.2d 540 (1948), later appeal, 207 Ga. 380, 61 S.E.2d 836 (1950); Dixon v. Dixon, 211 Ga. 122, 84 9-12-40 S.E.2d 37 (1954); Vidalia Prod. Credit Ass’n v. Durrence, 94 Ga. App. 368, 94 S.E.2d 609 (1956); Smith v. Bank of Acworth, 111 Ga. App. 112, 140 S.E.2d 888 (1965); General Shoe Corp. v. Hood, 121 Ga. App. 444, 174 S.E.2d 212 (1970). Judgment not res judicata. — When a general demurrer (now motion to dismiss) that does not go to the merits of the cause of action is sustained, the judgment sustaining the demurrer and dismissing the action will not be res adjudicata in a subsequent suit between the same parties on the same cause of action. Buie v. Waters, 209 Ga. 608, 74 S.E.2d 883 (1953). In a client’s fraud claim against an attorney, neither appellate opinions that the client could pursue that claim without filing the expert affidavit required under O.C.G.A. § 9-11-9.1(b) (now (e)) in professional malpractice claims, nor the trial court’s subsequent denial of the attorney’s summary judgment motion, asserting a failure to show a false representation or detrimental reliance, established the law of the case precluding the trial court from subsequently granting the attorney’s summary judgment motion based on the client’s failure to prove damages. Hopkinson v. Labovitz, 263 Ga. App. 702, 589 S.E.2d 255 (2003). Trial court did not err in ruling for a creditor in the creditor’s action pursuant to O.C.G.A. § 44-14-231 to foreclose on personal property and to recover monies lent and unpaid because the doctrine of res judicata did not apply when the merits of the creditor’s claims for foreclosure and monies lent had not been previously adjudicated by a court of competent jurisdiction; the issue before an administrative law judge (ALJ) in the Office of State Administrative Hearing was limited to whether the Georgia Department of Revenue acted properly in cancelling the creditor’s certificate of title to a vehicle, and in denying the creditor’s motion for reconsideration, the ALJ specifically stated that the issue of whether the creditor would be reflected on the certificate of title to the vehicle as lienholder was not before the court. Allen v. Santana, 303 Ga. App. 844, 695 S.E.2d 314 (2010). Pleadings insufficient to allow court to determine whether res 93 Res Judicata (Cont’d) judicata required dismissal of pro se action. — In an action in which a former inmate, in a pro se action under 42 U.S.C. § 1983 attached to the complaint a copy of a June 29, 2004, Ante Litem Notice provided by an attorney to the Commissioner, Georgia Department of Corrections, the Chairman, Sumter County Board of Commissioners, and the Department of Administrative Services for the Risk Management Department detailing the inmate’s 2003 accident and medical care thereafter, and announced an intention to file a lawsuit if the case was not settled, the inmate was ordered to file a supplemental complaint because the court could not determine whether the earlier action was filed and whether this case should be dismissed as res judicata. Bray v. Ingram, No. 1:05-CV-98(WLS), 2005 U.S. Dist. LEXIS 25832 (M.D. Ga. Oct. 27, 2005). Trial court erred in applying the doctrine of res judicata in an action by a city seeking an injunction to require a company to remove billboards which were erected in violation of city ordinances because, even though a valid antecedent judgment existed which arose out of a case involving the same parties and in which the same matters either were in issue or could have been put in issue, the doctrine could not be applied to prevent the city from enforcing the city’s ordinances. City of Statham v. Diversified Dev. Co., 250 Ga. App. 846, 550 S.E.2d 410 (2001). Effect of a voluntary dismissal without prejudice. — Defendant who voluntarily dismissed without prejudice a compulsory counterclaim could not renew the counterclaim as an original action under O.C.G.A. § 9-2-61 after the plaintiff had voluntarily dismissed with prejudice the main claim without objection by the defendant because renewal of the counterclaim was barred by res judicata. Robinson v. Stokes, 229 Ga. App. 25, 493 S.E.2d 5 (1997). Effect of a voluntary dismissal with prejudice. — Voluntary dismissal with prejudice, although without order or approval of the trial court, is considered a judgment on the merits for purposes of res judicata. Fowler v. Vineyard, 261 Ga. 454, 9-12-40 405 S.E.2d 678 (1991), rev’g Vineyard v. Fowler, 197 Ga. App. 453, 398 S.E.2d 709 (1990). Judgment on demurrer (now motion to dismiss), until reversed, concludes the parties on all questions necessarily or actually involved in the decision, but is not conclusive of any other issue. Byrd v. Goodman, 195 Ga. 621, 25 S.E.2d 34 (1943). Ruling action barred by res judicata on motion to dismiss proper. — When the court, on demurrer (now motion to dismiss), holds that the transaction upon which a recovery is sought does not, as it is alleged in the petition, constitute a cause of action, and dismisses the action on this ground, the judgment operates as a res adjudicata, and bars a subsequent suit between the parties on the same transaction, though in the first case the facts were untruly or improperly stated, and if the facts had been truly and properly stated, a cause of action would have been disclosed. Woods v. Travelers Ins. Co., 53 Ga. App. 429, 186 S.E. 467 (1936); Redwine v. Frizzell, 186 Ga. 296, 197 S.E. 805 (1938); Hughes v. Henderson, 61 Ga. App. 743, 7 S.E.2d 317 (1940); Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952). Dismissal as adjudication on merits. — As to those matters to which a dismissal constitutes an adjudication on the merits, the defense of res judicata will lie and summary judgment may be had thereon. Liner v. North, 194 Ga. App. 175, 390 S.E.2d 263 (1990); Head v. Head, 199 Ga. App. 104, 403 S.E.2d 835 (1991). Res judicata does affect an attack on a garnishment order issuing from the original judgment. Georgia Farm Bldgs., Inc. v. Willard, 169 Ga. App. 394, 313 S.E.2d 112, aff ’d, 253 Ga. 649, 325 S.E.2d 591 (1984). Application in garnishment proceeding. — Trial court properly granted a bank summary judgment in a suit for conversion against the bank brought by a debtor because the debtor’s claim was barred by res judicata since the debtor failed to raise any challenge in the garnishment proceeding wherein the bank was a garnishee. Copeland v. Wells Fargo Bank, N.A., 317 Ga. App. 669, 732 S.E.2d 94 536 (2012), cert. denied, No. S13C0189, 2013 Ga. LEXIS 124 (Ga. 2013). Attorney’s action for reinstatement barred by res judicata. — Federal district court judgment for the state bar, concluding that an attorney’s action for reinstatement was barred by res judicata resulting from prior litigation in a state court, was res judicata in a subsequent state court action for reinstatement. State Bar v. Beazley, 256 Ga. 561, 350 S.E.2d 422 (1986), cert. denied, 481 U.S. 1016, 107 S. Ct. 1894, 95 L. Ed. 2d 501 (1987). Litigating existence of additional terms of same lease in subsequent action was impermissible since the parties had the opportunity and the obligation in the first action to ensure that all terms of the lease were included in the court’s judgment. Lay Bros. v. Tahamtan, 236 Ga. App. 435, 511 S.E.2d 262 (1999). Compulsory counterclaims. — Since an insured’s counterclaim for property damage against a tortfeasor, which the insured later withdrew, was a compulsory counterclaim, under O.C.G.A. § 9-11-13(a), the insurer was barred by res judicata and O.C.G.A. § 9-12-40 from reasserting that claim in a subsequent suit in which the insurer sought to recover from the tortfeasor for damages it paid to the insured. Allstate Ins. Co. v. Welch, 259 Ga. App. 71, 576 S.E.2d 57 (2003). Counterclaim in federal action which was not raised in earlier state action. — In a federal declaratory judgment action to construe a tenant’s repair, replacement, and maintenance obligations under a lease, the landlord’s counterclaim for damages for breach of the duty to repair was barred by res judicata as the claim could have been raised in an earlier state action by the landlord alleging breach of contract by the tenant for, inter alia, the tenant’s violation of the maintenance and repair provisions of the lease. Capitol Funds, Inc. v. Arlen Realty, Inc., 755 F.2d 1544 (11th Cir. 1985). Judgment on counterclaim after dismissal of complaint. — Although a dismissal without prejudice will not, standing alone, carry any res judicata effect, the entry of a judgment on a counterclaim asserted in that action does have res judicata effect. Moate v. Moate, 265 9-12-40 Ga. 418, 456 S.E.2d 502 (1995). Failure to file permissive cross-claim. — Res judicata bars party who foregoes opportunity to file permissive cross-claim from bringing the claim in a subsequent action. Fowler v. Vineyard, 261 Ga. 454, 405 S.E.2d 678 (1991). Claims arising out of same traffic accident. — Cross-claims for indemnification and contribution, and a later personal injury claim, both arising out of the same traffic accident, involve an identity of subject matter for purposes of res judicata. Fowler v. Vineyard, 261 Ga. 454, 405 S.E.2d 678 (1991). Declaratory judgment erroneously given res judicata effect. — Federal district court erroneously interpreted Georgia law when the court gave res judicata effect to a declaratory judgment of the state superior court, which was not final because various counterclaims and cross claims were still pending. Cable Holdings of Battlefield, Inc. v. Cooke, 764 F.2d 1466 (11th Cir. 1985). When the second action merely involved new or different pleadings, a former federal action barred a second state action, although in denying leave to amend because of prejudicial delay and dismissing the first action, the federal judge stated, ‘‘this action would not be considered a ‘prior action based on the same set of facts’ for purposes of applying the doctrine of res judicata in a subsequent suit.’’ Walker v. Kroger Co., 181 Ga. App. 745, 353 S.E.2d 551 (1987). RICO actions. — When each of the victims of a fraudulent scheme sued the perpetrator for fraud and related claims, the victims could have also sued the perpetrator under the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., in the same action, and the victims should have raised such a claim in those actions because, when the victims did not and lost the victims’ suits against the perpetrator, the victims were barred by collateral estoppel and res judicata from filing RICO claims against the perpetrator at a later time. Austin v. Cohen, 268 Ga. App. 650, 602 S.E.2d 146 (2004). Prior action in magistrate court for wrongful garnishment barred a later 95 Res Judicata (Cont’d) wrongful garnishment claim asserted in state court under the doctrine of res judicata. Brinson v. First Am. Bank, 200 Ga. App. 552, 409 S.E.2d 50 (1991). Order rendered by responding court in Uniform Reciprocal Enforcement of Support Act, O.C.G.A. Art. 2, Ch. 11, T. 19, proceeding is not res judicata in a subsequent action for arrearage under the original support order, subject to a setoff of any such arrearages already paid to prevent a double recovery. State ex rel. Brookins v. Brookins, 257 Ga. 205, 357 S.E.2d 77 (1987). Action for pain and suffering distinct from wrongful death case. — When a wife’s prior cause of action for the wrongful death of her husband was a separate and distinct cause of action from a subsequent action for pain and suffering she brought in her capacity as administratrix of her husband’s estate, a judgment against her in the prior action did not bar the subsequent claim for pain and suffering on grounds of res judicata or collateral estoppel. Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852, 399 S.E.2d 708 (1990), aff ’d, 261 Ga. 697, 409 S.E.2d 847 (1991). Award of prejudgment interest. — When a trial court, upon remittitur, entered a judgment as directed by the Court of Appeals, the trial court erred in then finding that the losing party’s argument as to prejudgment interest was barred by res judicata since the award to the plaintiff of prejudgment interest under O.C.G.A. § 51-12-14 was not clearly erroneous until the Court of Appeals had reversed the earlier judgment. City of Fairburn v. Cook, 195 Ga. App. 265, 393 S.E.2d 70 (1990). Attorney’s fees. — Since the claim could have been raised in a suit on a note and security deed, a claim for contractual attorney’s fees was barred by the doctrine of res judicata under O.C.G.A. § 9-12-40. Kauka Farms, Inc. v. Scott, 256 Ga. 642, 352 S.E.2d 373 (1987). Res judicata applied. — Res judicata applied to bar the executor’s action against the decedent’s brother seeking to cancel a prior deed and to impose a con- 9-12-40 structive trust upon the property since the three criteria of O.C.G.A. § 9-12-40 were properly met. McIver v. Jones, 209 Ga. App. 670, 434 S.E.2d 504 (1993). Because the employer did not raise the issue of credit for disability plan payments and did not appeal from the award of benefits by an administrative law judge at a workers’ compensation hearing, the award was res judicata on the issue of credit for disability plan payments. Webb v. City of Atlanta, 228 Ga. App. 278, 491 S.E.2d 492 (1997). Res judicata barred the plaintiff ’s second petition to be appointed executor of plaintiff ’s parent ’s estate. In re Estate of Bagley, 239 Ga. App. 877, 522 S.E.2d 281 (1999). Res judicata precluded the patient from bringing a second action for medical malpractice, breach of contract, and failure to secure informed consent against the appellants since the first action was against the same defendant, there was an adjudication on the merits, and the patient had a full and fair opportunity to litigate the first action. Simon v. Gunby, 260 Ga. App. 3, 578 S.E.2d 482 (2003). Not applicable to motion to modify child support. — Res judicata did not preclude the trial court from considering the wife’s petition to modify child support as an action for modification is not identical to an original divorce action and the settlement agreement, which addressed child support, did not preclude modification of a child support award. Odom v. Odom, 291 Ga. 811, 733 S.E.2d 741 (2012). Borrowers’ fraud and conversion claims not barred by res judicata. — Bank assigned a note and a deed to secure debt to the borrowers’ friend, who assigned them to a third party, which foreclosed on the borrowers’ home and filed a successful dispossessory action against them. The borrowers’ fraud and conversion claims against the bank were not barred by res judicata under OCGA § 9-12-40 or collateral estoppel as the bank was not a privy to the party involved in the dispossessory action. Dennis v. First Nat’l Bank of the S., 293 Ga. App. 890, 668 S.E.2d 479 (2008). Issue barred by res judicata. — Whether the city could be held liable for 96 failure to maintain the drainage system was decided in the city’s favor in the initial suit; therefore, in a subsequent suit, a claim for a declaratory judgment against the city regarding the city’s responsibility for maintaining the system was barred by the doctrine of res judicata. Macko v. City of Lawrenceville, 231 Ga. App. 671, 499 S.E.2d 707 (1998), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146, 661 S.E.2d 195 (2008). Res judicata doctrine did not bar the corporation’s counterclaim that the corporation had easement rights in the parking deck of a building the corporation purchased from the law school as the prior litigation it was involved in with the law school over who was the building’s rightful owner and whether the law school was required to give the corporation a limited warranty deed after the law school reacquired the property did not involve the same issue in the subsequent litigation between the limited liability company, whose sole member was the law school, and the corporation; indeed, the issue of easement rights did not come up until after that prior litigation ended. Parking Deck LLC v. Anvil Corp., 259 Ga. App. 1, 576 S.E.2d 24 (2002). Trial court properly dismissed an injured person’s premises liability complaint against a store owner on the basis of res judicata since the injured person’s earlier action against the store owner on the identical claim was dismissed because it failed to state a claim upon which relief could be granted; as this was a decision on the merits, the doctrine of res judicata barred a subsequent lawsuit on this claim. Brown v. J. H. Harvey Co., 268 Ga. App. 322, 601 S.E.2d 808 (2004). Finality of judgment. — It is the general rule that a judgment sought to be used as a basis for the application of the doctrine of res judicata must be a final judgment. Reid v. Reid, 201 Ga. App. 530, 411 S.E.2d 754 (1991). No final judgment if appeal pending. — Judgment is not final, for purposes of res judicata, while an appeal is pending. Thomas v. Brown, 708 F. Supp. 336 (N.D. Ga. 1989). Because a dispossessory court never 9-12-40 ruled upon or resolved a landlord’s claims for past due rent and other damages, and because the dispossessory court lacked jurisdiction over the defaulting tenants, who were served by ‘‘nail and mail’’ service under O.C.G.A. § 44-7-51(a), the landlord’s claims were not barred by the doctrine of res judicata under O.C.G.A. § 9-12-40 or subject to a plea of abatement under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a). Bhindi Bros. v. Patel, 275 Ga. App. 143, 619 S.E.2d 814 (2005). Failure to appeal a prior judgment rendered judgment binding. — Homeowners’ complaint against a homeowners’ association was properly dismissed for failure to state a claim because the complaint challenged a prior judgment obtained by the association against the homeowners from which the homeowners did not appeal. That prior judgment was therefore res judicata. Laosebikan v. Lakemont Cmty. Ass’n, 302 Ga. App. 220, 690 S.E.2d 505 (2010). Issuance of a writ of possession constituted ‘‘final judgment’’ of the magistrate court since the only relief requested by the plaintiff was the issuance of the writ and the plaintiff expressly declined to seek judgment for any amounts due under the lease between the parties. Atlanta J’s, Inc. v. Houston Foods, Inc., 237 Ga. App. 415, 514 S.E.2d 216 (1999). Medical malpractice. — Res judicata required the subject matter of the causes of action at issue to be identical; the dismissal of a patient’s malpractice suit against a doctor based on the first of three surgeries relating to the patient’s breast implants did not bar a second suit based on the two later surgeries, although all three surgeries were related to one another. Gunby v. Simon, 277 Ga. 698, 594 S.E.2d 342 (2004). Estoppel by Judgment Meaning of term. — Estoppel by judgment occurs when the issue determined in the prior proceeding is the same as that in the subsequent proceeding. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980). Doctrine of estoppel by judgment has reference to previous litigation between 97 Estoppel by Judgment (Cont’d) the same parties based upon a different cause of action. Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981). Plea of estoppel by judgment stems from the doctrine of res judicata and is available when there has been a former adjudication of the same issues by the parties or their privies, even though the adjudication may not have been upon the same cause of action. House v. Benton, 42 Ga. App. 97, 155 S.E. 47 (1930); Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946); Blakely v. Couch, 129 Ga. App. 625, 200 S.E.2d 493 (1973); Price v. Winn, 142 Ga. App. 790, 237 S.E.2d 409 (1977). Applicable rule. — Different rule from that in this section applies in regard to estoppel by judgment. Scarborough v. Edgar, 176 Ga. 574, 168 S.E. 592 (1933), overruled on other grounds, Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939). Collateral estoppel prevented issues decided in federal action from being relitigated in the state court action against the defendants. Brewer v. Schacht, 235 Ga. App. 313, 509 S.E.2d 378 (1998). Because the Eleventh Circuit Court of Appeals expressly ruled that a sheriff ’s deputy had probable cause for the traffic stop and arrest of a driver based upon a tag light violation, had probable cause for arrest based upon the driver’s acts of obstruction, and had not used excessive force in making the arrest, under the doctrine of collateral estoppel, the Court of Appeals of Georgia was compelled to hold that the issues as to the lawfulness of the deputy’s actions, probable cause, and excessive force could not be relitigated; thus, the deputy was properly granted summary judgment as to these claims in the state court. Draper v. Reynolds, 278 Ga. App. 401, 629 S.E.2d 476 (2006). Previous action may be unrelated. — Estoppel by judgment can arise by virtue of a judgment authorized by the pleadings, rendered in previous litigation between the same parties, based upon an altogether different cause of action. Capps v. Toccoa Falls Light & Power Co., 46 Ga. 9-12-40 App. 268, 167 S.E. 530 (1933). Identity of parties. — To create estoppel by judgment the parties must be the same or in privy. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967); National Hills Shopping Ctr., Inc. v. Insurance Co. of N. Am., 308 F. Supp. 248 (S.D. Ga. 1970). Estoppel must be mutual. — There is one general rule, which is applicable alike to estoppel by record, by deed, and to equitable estoppel or estoppel in pais: that is, that estoppels must be mutual. Strangers can neither take advantage of, nor be bound by an estoppel; its binding effect is between the immediate parties, their privies in blood, in law, and by estate. Porterfield v. Gilmer, 132 Ga. App. 463, 208 S.E.2d 295 (1974), aff ’d, 233 Ga. 671, 212 S.E.2d 842 (1975). Matters must be within scope of previous pleadings. — There is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by outside proof to have been actually litigated and determined. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946); Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981). Issue barred by collateral estoppel. — Any claims for damages allegedly occurring after the first suit were barred by collateral estoppel to the extent that such claims were premised upon the homeowner’s assertions that the city was responsible for maintaining the subdivision’s drainage system since the first suit found that the city did not exert control over the drainage system. Macko v. City of Lawrenceville, 231 Ga. App. 671, 499 S.E.2d 707 (1998), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146, 661 S.E.2d 195 (2008). In finding that a debtor had committed waste, mismanaged the funds of the debtor’s ward, and failed to account for those funds, a probate court actually litigated the issue of defalcation for purposes of 11 U.S.C. § 523(a)(4) and the court’s order was given collateral estoppel effect in the 98 dischargeability proceeding. Clark v. Sanders (In re Sanders), 315 B.R. 630 (Bankr. S.D. Ga. 2004). Denial of a sister’s and an executrix’s motions for a judgment notwithstanding the verdict were reversed as a constructive trust could not be imposed over the proceeds of a condemnation since: (1) a mother did not make any agreement with her children regarding the quitclaim deeds or the proceeds of the condemnation; (2) the documents signed by the siblings were unequivocal and unrestricted; (3) the mother did not make any promise with the intent not to carry it out; (4) there was nothing to indicate that when the mother obtained a certificate of deposit and opened a money market account in her and the executrix’s and the sister’s names as joint tenants with right of survivorship, she meant to do anything other than that; and (5) the siblings did not raise the issue of a constructive trust in the condemnation proceedings and were collaterally estopped from raising the issue in a later action. Jenkins v. Jenkins, 281 Ga. App. 756, 637 S.E.2d 56 (2006), cert. denied, 2007 Ga. LEXIS 87 (Ga. 2007). Collateral estoppel applied to bar the debtor from relitigating the issue of a default judgment for the debtor’s liability for fraud, wrongful eviction, and punitive damages pursuant to 11 U.S.C. § 523(a)(2) and (6), as well as pursuant to O.C.G.A. § 9-12-40; thus, judgment in the amount of $222,833 was granted. Hebbard v. Camacho (In re Camacho), 411 B.R. 496 (Bankr. S.D. Ga. 2009). Separate action for contribution not barred. — Party who chooses not to assert his or her claim for contribution as a counterclaim is not barred from bringing a separate suit for contribution after a judgment has been entered in the original tort action. Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 410 S.E.2d 154 (1991). Question must have been one of the ‘‘ultimate’’ questions or facts in issue as opposed to a supporting evidentiary or ‘‘mediate’’ question. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967). Collateral matter only incidentally considered by court. — If a question comes collaterally before a court and is 9-12-40 only incidentally considered, the judgment or decree is no estoppel. Mortgage Bond & Trust Co. v. Colonial Hill Co., 175 Ga. 150, 165 S.E. 25 (1932). Burden on party relying on claim. — When a judgment is claimed as an estoppel, the burden is upon the party relying thereon to show that the particular matter in controversy was necessarily or actually determined in the party’s favor in the former litigation; and if it appears from the record introduced in support of such claim that several issues were involved in the previous litigation, and the verdict and judgment therein do not clearly show that the particular issue was then decided, before such claim can be sustained the uncertainty must be removed by extrinsic evidence showing that the issue was then decided in favor of the party relying upon such adjudication or estoppel. Gormley v. Cleveland, 187 Ga. 457, 200 S.E. 793 (1939); Gunnin v. Carlile, 195 Ga. 861, 25 S.E.2d 652 (1943). Upon the party setting up an estoppel by judgment rests the burden of proving it, and it matters not how numerous the questions involved in the suit may be, provided they were tried and decided for the judgment is conclusive not only of the thing directly decided, but of every fact which was essential to the adjudication; any conclusion which the court or jury must evidently have arrived at in order to reach the judgment or verdict rendered will be fully concluded. Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981). Action to recover wrongfully taken property different from divorce action. — Since a divorce action did not as originally filed pray for alimony or for the recovery of other property, it follows that as first brought that action was based on a different cause of action from the one in the subsequent action, which sought among other things to recover property wrongfully taken from the spouse before the action for divorce was filed. Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945). Questioning validity of earlier judgment. — When a party, in temporary alimony proceedings, contends that he is not subject to a judgment therefor because he had made a final alimony settlement 99 Estoppel by Judgment (Cont’d) with his wife by contract, under the doctrine of estoppel by judgment, he is concluded in a subsequent contempt proceeding from contending that the judgment awarding temporary alimony was void because he was never his wife’s lawful husband. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946). Administrative decision may act as an estoppel in a judicial proceeding involving the same parties only if the issue decided by the administrative body is the same as that involved in the litigation. Epps Air Serv., Inc. v. Lampkin, 229 Ga. 792, 194 S.E.2d 437 (1972). Effect of finding that action barred by statute of limitations or laches. — Finding against a party, either upon final hearing or demurrer (now motion to dismiss), that the party’s cause of action as shown by the party is barred by the statute of limitations or by laches is a decision upon the merits, concluding the right of action. Gamble v. Gamble, 204 Ga. 82, 48 S.E.2d 540 (1948), later appeal, 207 Ga. 380, 61 S.E.2d 836 (1950); Capps v. Toccoa Falls Light & Power Co., 46 Ga. App. 268, 167 S.E. 530 (1933); College Park Land Co. v. Mayor of College Park, 48 Ga. App. 528, 173 S.E. 239 (1934); Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940); Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980). Raising of paternity issue. — Child was not collaterally estopped from asserting that she was the daughter of the deceased in an action for her share of an intestate estate despite the fact that a divorce decree between her mother and a third party provided for her support and visitation; the mother’s interests at the time of the divorce were not in privy with those of her child and the child was not 9-12-40 estopped from raising the issue of her paternity. Pinkard v. Morris, 215 Ga. App. 297, 450 S.E.2d 330 (1994). Custody issue could not be relitigated. — Estoppel by judgment prevented a parent from relitigating a custody issue which was decided by the juvenile court in a prior contempt action brought by the parent against the other parent. Williams v. Stepler, 227 Ga. App. 591, 490 S.E.2d 167 (1997). Child support recovery based on fraud. — Action by a parent for recovery of child support, the gravamen of which was that the obligated parent misrepresented income to the Department of Human Resources in an earlier proceeding, was barred on the basis that the consent judgment entered in the earlier proceeding was res judicata and binding until reversed or set aside, and that it was too late to set it aside because a motion to set aside a judgment for fraud must be brought within three years from entry of the judgment. Turner v. Butler, 245 Ga. App. 250, 537 S.E.2d 703 (2000). Preclusive effect of default judgment in bankruptcy. — Since under Georgia law a default judgment is a decision on the merits for purposes of estoppel by judgment, the default judgment has preclusive effect in determining whether the judgment debt fell within the fraud exception to dischargeability in bankruptcy. League v. Graham, 191 Bankr. 489 (Bankr. N.D. Ga. 1996). Trial court did not err in granting a lender’s motion for summary judgment because the doctrine of res judicata barred a debtor’s suit alleging that the lender incorrectly charged interest on the debtor’s unsecured revolving line of credit; the same matters were already litigated between the same parties in an action previously adjudicated on the merits by a court of competent jurisdiction. Rose v. Household Fin. Corp., 316 Ga. App. 282, 728 S.E.2d 879 (2012). 100 9-12-40