The decedent, Wenona R. Averette, died on March 22, 2000. In the two months before the decedent’s death, her daughter, appellee-defendant Elaine Averette Browning-Erneston had served as the decedent’s guardian, this upon a January 20, 2000 order of the Probate Court for Richmond County. Browning-Erneston’s guardianship ended upon the death of the decedent, on April 24, 2000, and the probate court appointed the decedent’s son Browning-Erneston’s brother, appellant-plaintiff Danny F. Averette, as executor of his decedent mother’s estate under her will. Browning-Erneston filed her final accounting of the estate in the probate court on June 15, 2000. Thereafter, Averette filed a caveat to the accounting, and, on September 22, 2000, following a hearing, the probate court entered its final order in the case approving the accounting entered as to the guardianship of the estate and addressing the disposition of certain bank accounts and a certificate of deposit which belonged to the estate. On February 28, 2002, Averette, individually and as executor of the estate, filed the underlying action alleging that his sister had wrongfully taken possession of personal property belonging to the estate. The parties filed cross-motions for summary judgment, and, on September 15, 2003, following a hearing, the superior court entered the order complained-of, granting Browning-Erneston summary judgment and denying summary judgment to Averette upon finding Averette’s February 28 suit barred by the doctrine of res judicata.
Averette appeals, contending that summary judgment for Browning-Erneston was error, res judicata as inapplicable to the instant action; that the superior court’s award upon grant of summary judgment was error for failure to give effect to that portion of the probate court’s judgment which specified that a First Union account which Browning-Erneston moved into a guardianship account for the benefit of the decedent mother as her ward should be “restored to its status as joint with right of survivorship between Averette and his decedent mother . . . and distributed as provided in the joint tenancy agreement”; and that attorney fees were chargeable to the estate under OCGA § 53-5-26 for the inapplicability of res judicata doctrine.
