However, the probate court did not decide the issue of whether Appellee breached his fiduciary duties as testator's attorney in fact, or intentionally interfered with an expected gift, by failing to comply with his written directions in 2003. Compare McGraw v. Smith, 232 Ga. App. 513, 514 (1) ( 502 SE2d 347) (1998) (collateral estoppel applied where both a caveat and claims in a subsequent action were based on the testator's alleged spoken intent, which was contrary to the will). Nor were the separate issues of fraud litigated in probate court.
284 Ga. 112, 115 (3), 663 S.E.2d 714 (2008) (holding that caveat to petition for probate and claims for breach of fiduciary trust, constructive trust, and intentional interference with a gift were not identical causes of action because the focus of the claims was the alleged direction to make an inter vivos gift, not the validity of the will), disapproved of on other grounds by Gilliam v. State , 312 Ga. 60, 63, 860 S.E.2d 543 (2021). But see Crowe , 290 Ga. at 688, 723 S.E.2d 428 (holding that causes of action for breach of contract and motion to set aside year's support were identical when the gravamen of each challenge was assertion that decedent's widow refused to abide by an oral agreement regarding the ultimate distribution of decedent's estate); McGraw v. Smith , 232 Ga. App. 513, 514 (1), 502 S.E.2d 347 (1998) (holding that causes of action were identical when "caveat contended that [decedent's] will did not effectuate his oft-stated intent to his children that his estate be divided into equal shares" and the plaintiffs relied upon decedent's "purported statements that he planned to divide his estate into equal shares as the rationale for imposing a constructive trust").Coen , 304 Ga. at 112 (2), 816 S.E.2d 670 (citations and punctuation omitted).
PN Express v. Zegel, 304 Ga.App. 672, 679(4), 697 S.E.2d 226 (2010).McGraw v. Smith, 232 Ga.App. 513, 515(2), 502 S.E.2d 347 (1998). See also Rayburn v. Ga. Power Co., 284 Ga.App. 131, 139(3), 643 S.E.2d 385 (2007) (expert's opinion that defendant company “retained control” over contractor's employees was an inadmissible legal conclusion); DeVooght v. Hobbs, 265 Ga.App. 329, 334(3), 593 S.E.2d 868 (2004) (expert opinion that actions of one party were imputable to another was an inadmissible legal conclusion); Allen v. Columbus Bank & Trust Co., 244 Ga.App. 271, 277–278(2), 534 S.E.2d 917 (2000) (opinion that letter “may be fraudulent” was an inadmissible legal conclusion).
Although Smith presented Rankin's affidavit, in which Rankin theorized that Hilltop intentionally lied to Smith when its representatives failed to explain that the unlevel appearance of the pool liner was more than an aesthetic problem, that the unlevel appearance indicated an underlying structural problem, and that Hilltop's conduct amounted to fraud, the affidavit is insufficient to create a jury issue as to whether Hilltop's representatives knew their representations were false. See McGraw v. Smith, 232 Ga. App. 513, 515 (2) ( 502 SE2d 347) (1998) ("it is well established that an expert witness may not state a legal conclusion as to the ultimate issue"); Lasoya v. Sunay, 193 Ga. App. 814, 816 (1) ( 389 SE2d 339) (1989) (holding that testimony showing the defendant should have known that performing a biopsy of the fallopian tube in the manner in which he performed it would render the plaintiff sterile-rather than her sterility being caused from the "diseased condition" of the fallopian tube as the defendant testified "only raise[d] an inference of negligence, not of fraud"). 3. Finally, Smith contends that the trial court erred by granting the motion for summary judgment as to his claims of punitive damages and expenses of litigation because the grant was based on the trial court's erroneous holdings that Smith lacked any viable underlying claims.
"[I]t is well established that an expert witness may not state a legal conclusion as to the ultimate issue." McGraw v. Smith, 232 Ga. App. 513, 515 (2) ( 502 SE2d 347) (1998). Thus we find no merit in this enumeration.
Thus, we hold that under the circumstances of this case, the consent order's finding that Harris died intestate collaterally bars Rogers's petition to probate Harris's purported will. See Dickerson v. Dickerson, 247 Ga. App. at 813-814 (1) (finding in wrongful death action that decedent's companion was not his common law wife binding in later probate action); Gwinnett County Bd. of Tax Assessors v. Gen. Elec. Capital Computer Svcs., 273 Ga. 175 ( 538 SE2d 746) (2000) (consent order in prior action barred relitigation of issues between same parties); McGraw v. Smith, 232 Ga. App. 513, 514 (1) ( 502 SE2d 347) (1998) (prior finding that decedent had bequeathed land to only one child barred later constructive trust action by other siblings). "[C]ollateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim." Gwinnett County Bd. of Tax Assessors v. Gen. Elec. Capital Computer Svcs., 273 Ga. at 178 (1). For these reasons, we affirm the trial court's order affirming the probate court's denial of Rogers's petition to probate in solemn form.
The trial court did not err is striking the accountant's opinions in this letter concerning fraud. See McGraw v. Smith, 232 Ga. App. 513, 515 (2) ( 502 S.E.2d 347) (1998). See City of Atlanta v. Hightower, 177 Ga. App. 140, 143 ( 338 S.E.2d 683) (1985); Williams v. Douglas County School District, 168 Ga. App. 368, 368-369 (2) ( 309 S.E.2d 386) (1983).
In two enumerations, Johnson contends the trial court erred by "ignor[ing] its duty under the equity statutes" and in not entering an equitable decree holding the Florida judgment void. The doctrine of res judicata bars claims seeking equitable relief. See McGraw v. Smith, 232 Ga. App. 513, 514 (1) ( 502 S.E.2d 347) (1998); Ga. Farm Buildings v. Willard, 165 Ga. App. 325, 326-327 (1) ( 299 S.E.2d 181) (1983). Judgment affirmed. McMurray, P.J., and Andrews, J., concur.
The judgment of the superior court in the earlier case, once entered into evidence, was conclusive as to the ownership of the horses. McGraw v. Smith, 232 Ga. App. 513, 514 (___ S.E.2d ___) (1998). Thus, the judgment which Lawrence obtained operated as an estoppel against the Russells in this case.