dissenting. Although I agree with the majority’s recitation of the applicable standard of review, I respectfully disagree with the majority’s application of that standard to the facts in the instant case. I cannot say that the circuit court did not err in finding that appellant’s claims are barred by the doctrine of res judicata. Res judicata, or claim preclusion, bars the relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involved the same parties or their privies. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 581, 864 S.W.2d 244, 246 (1993).
Applying the factors required to establish res judicata, I must concede that the Sebastian County Probate Court entered what purported to be a final order or judgment on the merits. In fact, the probate court expressly acknowledged in its July 16, 1998 order that “all matters in controversy between the parties to this action should be, and are hereby, disposed of in accordance with the terms of this Order and that all affirmative pleadings in this case should be, and are hereby, dismissed with prejudice.”
However, I disagree with the majority’s conclusion that the probate court had proper jurisdiction to enter its final order. This action began as a petition for guardianship. After a hearing on July 1, 1998, but before proceeding to a second day of trial, the parties entered into a “settlement agreement,” in other words, a contract. Unfortunately, the probate court incorporated the terms of that contract into its final order dismissing appellees’ guardianship petition. Notably, the July 16, 1998 order violates the court’s own April 1, 1998 order enjoining appellant from contracting or transferring property to a third person pending the outcome of the guardianship proceeding. Of course, there was no outcome because the action was dismissed. Further, the July 16, 1998 order embraces another direct violation of the April order, specifically, appellant’s contractual agreement to “transfer all of his assets into [a] trust.”
Most importantly, the probate court’s July 16, 1998 order violates the governing provisions of Ark. Code Ann. section 28-65-213. Because the guardianship action was dismissed prior to a final determination of incapacity, the probate court lost jurisdiction over the matter. Section 28-65-113(b) states that:
The burden of proof by clear and convincing evidence is upon the petitioner, and a determination of incapacity shall be made before consideration of a proper disposition.
(Emphasis added.) Flere, the probate court never made the required determination of incapacity and, thus, could not consider any disposition, including the parties’ alleged “settlement.”
The majority suggests in a footnote that the probate court retained jurisdiction after the petition was dismissed via Arkansas’ Conservator statute, Ark. Code Ann. section 28-67-101 to -111. Again, the record provides no basis for this leap of logic. Like the procedure for a guardianship proceeding, a conservatorship action must commence with the fifing of a petition for appointment of a conservator. This may be accomplished by verified petition of a relative or friend who represents to the probate court that a person is unable to manage his property because of his advanced age or physical disability. The record evidences that no such petition was filed in the instant case. Second, a party may voluntarily consent to the granting of a conservator petition. Nonetheless, a petition must be filed and a notice of hearing must be served, or waived. Then, only after a full hearing and examination of the petition may the probate court appoint a conservator to the estate. These are not the facts before us.
As to the third prong of res judicata, I cannot agree that the case was fully contested in good faith, as plainly demonstrated by appellant’s efforts to seek relief following the probate court’s adoption of the settlement agreement. Curiously, only three months prior to the final order, the probate court believed appellant was incapable of entering into such a contractual agreement and specifically enjoined him from transferring property to a third person (e.g., a trust).
The majority also declines to discuss the long-standing exceptions to res judicata: (1) fraud or collusion in the procurement of the first judgment, and (2) lack of jurisdiction. Here, both exceptions apply. Indeed, the essence of appellant’s circuit-court complaint challenges his children’s motivations for initiating the guardianship action against him. Of course, it is telling that once appellant agreed to his children’s terms, appellees willingly dismissed their petition for guardianship. The error occurred here when the probate court went beyond dismissing the petition to entering a disposition agreement that it no longer had jurisdiction to consider.
In the absence of a “determination of incapacity,” as required by Ark. Code Ann. section 28-65-113(b), the probate court exceeded its jurisdiction by entering its July 16, 1998 order including the parties’ settlement agreement. In light of the foregoing, I cannot agree with the majority that appellant’s claims are barred by res judicata nor can I say that the circuit court did not err by granting summary judgment in favor of appellees. Viewing the evidence in the fight most favorable to appellant, resolving any doubts against appellees, and finding that there remain genuine issues as to material facts, I believe it clear that the trial court erred by finding that appellees were entitled to a judgment as a matter of law.
I respectfully dissent.