
    A89A1559.
    BRANNON v. SIMPSON.
    (386 SE2d 687)
    Decided September 5, 1989
    Rehearing denied September 25, 1989
    
      Chamberlain, Hrdlicka, White & Johnson, Richard N. Hubert, for appellant.
   Deen, Presiding Judge.

Louise Brannon brought a tort action against her father, Mayes, and co-executors of her grandfather’s estate (her uncle, J. W. Simpson, Jr., and her husband as her mother’s representative), alleging breach of fiduciary duty as to her remainder interest in certain real property. Brannon’s mother died in 1972, and Simpson and Mayes (who had managed the properties for the estate) showed her the properties in which she owned a one-half interest. A dispute arose between the parties over her interest in these and other properties which she believed had originally been a part of the estate. Simpson filed a partitioning action, and Brannon later attempted to file a counterclaim against Simpson individually and in his representative capacity alleging breach of fiduciary duty. The Bartow County Superior Court refused to allow the counterclaim to be filed by amendment, relying upon Rule 13 (f) of the Civil Practice Act (currently OCGA § 9-11-13 (f)), and held that Brannon and her attorney knew of the existence of the counterclaim at the time that the answer was filed, but failed to file it, and that this failure was not due to oversight, inadvertence or excusable neglect. This ruling and the rulings upon other orders in the case were appealed. Three of the thirty-three enumerations of error pertained to the dismissal of the counterclaim. In Brannon v. Simpson, 238 Ga. 351 (232 SE2d 841) (1977), the court affirmed all the rulings of the trial court in a two-sentence opinion.

In the instant case, the trial court held that Brannon’s claim is barred by the doctrine of res judicata and dismissed the case. Held:

We fully agree with the decision of the court below. We have examined the record submitted to the Supreme Court in Brannon v. Simpson, supra, and find the issue to be controlled by the doctrine of res judicata. Simpson’s executrix has the requisite privity of estate to assert this defense. College Park Land Co. v. Mayor of College Park, 48 Ga. App. 528 (173 SE 239) (1934).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

W. Morgan Akin, R. Lamar Brannon, for appellee.  