                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                            Assigned on Briefs June 8, 2012

               ESTATE OF DEOLA MILLER, ET AL. v. JIM RICE

                Appeal from the Chancery Court for Hickman County
                 No. 06332P    David Randall Kennedy, Chancellor


                No. M2011-02152-COA-R3-CV - Filed August 24, 2012


Administrator of decedent’s estate who was also the sole heir-at-law of decedent asserted
claim of breach of fiduciary duty against conservator for decedent. Following a trial, the
court held that the claim was barred by res judicata; estate and administrator appeal. We
affirm the dismissal of the action.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., and A NDY D. B ENNETT, JJ., joined.

Nick T. Tooley, Clarksville, Tennessee, and Melanie Totty Cagle, Centerville, Tennessee,
for the Appellant, Estate of Deola Miller and Maury Miller.

L. Bruce Peden, Columbia, Tennessee, for the Appellee, Jim Rice.

                                        OPINION

       This case arises out of the administration of the Estate of Deola Miller, who died on
September 28, 2006. Prior to her passing, Ms. Miller was the ward in a conservatorship
proceeding; Jim Rice, Defendant in the instant proceeding, was her Conservator. Upon Ms.
Miller’s passing, Mr. Rice filed a Petition for Letters of Administration, to which Maurice
Miller, Ms. Miller’s son and sole heir-at-law and the Plaintiff herein, objected. On May 7,
2007, the court entered an order appointing Mr. Miller as the Administrator of the Estate of
Deola Miller.

      The conservatorship proceeding was closed on January 10, 2007; on December 5,
2007, Mr. Rice filed a petition pro se in the probate proceeding seeking an award of post-
conservator fees and expenses. Mr. Miller answered the petition and filed a counter-petition
alleging that, as conservator of Ms. Miller, Mr. Rice breached his fiduciary duty; Mr. Miller
sought compensatory and punitive damages. Mr. Miller subsequently amended the counter-
petition. Trial was held on March 7, 8 and 9, 2011, and on August 25 the court entered an
order holding that the claims in the amended counter-petition were barred by collateral
estoppel and res judicata; the court dismissed the counter-petition.

       Mr. Miller appeals, stating the following issues for our review:

               I. Whether the trial court erred as a matter of law in finding that each
       Annual Accounting was a Final Judgment which was not subject to collateral
       attack.
               II. Whether the trial court erred in failing to determine that the
       Appellee fraudulently concealed his malfeasance and conversion of the ward’s
       assets to benefit the appellee and his immediate family.
               III. Whether the trial court erred in failing to determine that the
       Appellee breached his fiduciary duties owed to the Ward and as prescribed by
       law.

                                          D ISCUSSION

       Applications of collateral estoppel and res judicata present questions of law which we
review de novo with no presumption of correctness. Mullins v. State, 294 S.W.3d 529, 535
(Tenn. 2009) (collateral estoppel); In re Estate of Boote, 198 S.W.3d 699, 719 (Tenn. Ct.
App. 2005) (res judicata). We review the trial court’s findings of fact de novo, accompanied
by a presumption of correctness, unless the preponderance of the evidence is otherwise. See
Tenn. R. App. P. 13(d).

A. Collateral Estoppel

        The doctrine of collateral estoppel, or issue preclusion, is a defense to an action which
bars the same parties to an earlier suit, and their privies, from relitigating issues that were
litigated and determined in a prior suit. Barnett v. Milan Seating Sys., 215 S.W.3d 828, 835
(Tenn. 2007). A party invoking the defense has the burden of proof of showing five
elements: (1) that the issue to be precluded is identical to an issue decided in an earlier
proceeding; (2) that the issue was actually raised, litigated and resolved in the earlier
proceeding; (3) that the judgment in the earlier proceeding is final; (4) that the party against
whom collateral estoppel is asserted was a party or in privy with a party to the proceeding;
and (5) that the party had a full and fair opportunity to contest the issue now sought to be
precluded. Mullins, 294 S.W. 3d at 535.



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        Mr. Miller acknowledges the elements of collateral estoppel and contends that the trial
court determined that “each of the Annual accountings submitted by the Appellee constituted
a ‘final judgment’ for collateral estoppel purposes and that, consequently, Mr. Miller’s failure
to appeal each of these orders immediately following its entry barred him from raising any
objection to such orders in the instant action.” He argues, therefore, that the propriety of the
ruling “hinges on the correctness of its belief that an annual accounting in an ongoing
Conservatorship should be deemed a Final Judgment.”

        As an initial matter, we do not agree with the premise of Mr. Miller’s contention, i.e.,
that the trial court held that each of the accountings constituted a final judgment for collateral
estoppel purposes. Rather, the court clearly and correctly determined that the final order
closing the conservatorship was the relevant order for collateral estoppel purposes.
Conservatorships are governed by Tenn. Code Ann. § 34-1-101, et seq. A conservator is
required to file an accounting with the court annually, Tenn. Code Ann. § 34-1-111, which
is reviewed by the clerk with report made to the judge. Tenn. Code Ann. § 34-1-131. There
is nothing in the statutes governing conservatorships that indicates either that an annual
accounting, when approved by the court, is “final” for purposes of appeal or that, once
approved, an annual accounting cannot be revisited prior to the entry of the order closing the
estate.

        We have reviewed the findings in the court’s order and agree that the requirements
of collateral estoppel are met in this record. Neither the court’s order nor the record support
Mr. Miller’s assertion that he was in any way precluded from raising any issue related to Mr.
Rice’s handling of the conservatorship at any time prior to the entry of the order closing the
conservatorship. In its order, the trial court noted that, while Mr. Rice failed to make
quarterly reports and to submit those to Mr. Miller, Mr. Rice made the annual accountings
required by the statute and provided “limited notice” to Mr. Miller. The court also noted that
“[n]o objections were ever filed by Maury Miller to any of the annual accountings or the final
accounting” and that “[n]either an appeal, or a Rule 60 Motion was ever filed in the
Conservatorship of Deola Miller . . . .”

B. Res Judicata

       Res judicata is a claim preclusion doctrine. Massengill v. Scott, 738 S.W.2d 629, 631
(Tenn. 1987). Under the doctrine, a final judgment on the merits rendered by a court of
competent jurisdiction concludes the rights of the parties and their privies. Richardson v.
Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995). The doctrine bars a subsequent
action between the parties that involves the same claim or cause of action. Id. It prohibits
multiple lawsuits with respect to issues which were or could have been litigated in the prior
suit. Massengill, 738 S.W.2d at 631. Accordingly, res judicata applies not only to issues that

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were raised and adjudicated in the prior lawsuit, but to “all claims and issues which were
relevant and which could reasonably have been litigated in a prior action[.]” Am. Nat’l Bank
& Trust Co. of Chattanooga v. Clark, 586 S.W.2d 825, 826 (Tenn. 1979). In order for the
doctrine of res judicata to apply, the prior judgment must have been final and concluded the
rights of the parties on the merits. Richardson, 913 S.W.2d at 459.

       Mr. Miller’s claim that Mr. Rice was guilty of fraudulent concealment related to Mr.
Rice’s hiring of his relatives as sitters for the ward and to his misclassification of the ward’s
residence which was sold, giving rise to a tax penalty; the court held that this claim was
barred by res judicata. As with the issues which were barred by collateral estoppel, the facts
asserted to give rise to the claim of fraudulent concealment existed during the pendency of
the conservatorship, and the claim could have been raised in that proceeding; since it was not,
Mr. Miller could not raise it in a separate proceeding.1

                                            C ONCLUSION

      The court properly ruled that the issues and claim raised by Mr. Miller in the
Amended counter-petition were barred by collateral estoppel and res judicata. The judgment
dismissing the petition is, therefore, AFFIRMED.




                                                         _________________________________
                                                         RICHARD H. DINKINS, JUDGE




        1
           In this regard, the court noted that the guardian ad litem was aware that Mr. Rice employed his
relatives as sitters and expressed no objection or reservation and that the court approved the sale of the
residence in accordance with Tenn. Code Ann. § 34-1-116.

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