author: Andrews, Presiding Judge. Ruffin, Judge,

text:
    A99A1396, A99A1397.
    In the Interest of J. V., a child (two cases).
    (526 SE2d 386)
   Andrews, Presiding Judge.

These are related appeals by the natural parents of J. V., a minor child, from separate orders of the Cobb County Juvenile Court determining that J. V. is deprived and terminating the rights of his natural parents. In Case No. A99A1396, appellants assert that there was insufficient evidence to support the juvenile court’s deprivation order. In Case No. A99A1397, appellants challenge the termination order, asserting numerous errors. For reasons that follow, we affirm both the deprivation order and the termination order.

Facts

J. V., born on July 7,1997, is the only child of appellants, who are married. J. V. lived with his parents in an apartment near the home of his maternal grandmother, who cared for him during the day while his parents worked.

On Wednesday afternoon, November 12,1997, J. V.’s mother took him to the Cobb County Health Department for a routine well-baby checkup. During the examination, a nurse noticed bruises and a red mark on J. V.’s lower back and two fading marks on his arm. The nurse also said the baby did not seem happy, and she was bothered by this. She could not get the baby to smile or respond to her. The nurse was concerned enough to call several other nurses in and then to call the Department of Family & Children Services (“DFCS”) and report suspected abuse. J. V.’s mother was unable to give any satisfactory explanation of how the marks occurred.

On Friday evening, November 14, Rachel Oliver, an investigator with DFCS, visited J. V.’s residence to follow up on the nurse’s report. Oliver spent approximately 30 minutes at the apartment, during which she held J. V. and examined him. The bruises had faded, and Oliver saw no swelling and no sign that J. V. was in any pain. According to Oliver, J. V.’s mother was very cooperative and behaved appropriately and lovingly toward J. V. Oliver thought that the baby seemed happy and that the apartment was very neat and clean. She felt comfortable leaving J. V. with his parents.

At around 2:15 p.m. on Saturday, November 15, J. V.’s mother took him to Egleston Hospital because he was eating little and she suspected he had a throat infection. For the remainder of that day and night, J. V. remained with his parents, who reportedly noticed nothing unusual about him except his cold symptoms. On Sunday, November 16, J. V. was home with his parents all day, except for a three-hour visit to the home of J. V.’s grandmother for dinner. Appellants testified that they noticed nothing unusual about J. V. on Sunday.

On Monday morning, November 17, the family again stayed home — with the exception of a brief shopping trip — because J. V. was still ill and his father also had a cold. J. V.’s mother went to work at 1:00 p.m., leaving the baby with the father. At approximately 4:00 p.m., J. V.’s father took him to his grandmother’s house and then left to get his wife from work. Appellants returned to J. V.’s grandmother’s house around 6:30 p.m., ate dinner, and then took J. V. home to their apartment, where they remained for the rest of the evening. Around midnight, when J. V.’s mother awoke to feed him and give him medicine for his cold, she noticed that he would not roll over onto his left side and seemed a little uncomfortable. At about 3:00 a.m., J. V.’s father noticed that he was “restless” and gave him some Tylenol.

Tuesday morning, November 18, J. V.’s father noticed that J. V.’s left arm was swollen and bruised. He reported this observation to his wife, applied a salve to J. V.’s arm, and left for work. J. V.’s mother took J. V. to his grandmother’s and then went to work. At approximately 10:00 a.m., J. V.’s mother called to check on him and was told that everything was fine. Around noon, J. V.’s father called the grandmother’s house to report the swelling. Two hours later, the grandmother called the mother and said that the swelling had worsened and J. V. needed medical attention. J. V.’s mother left work, picked up J. V, and took him to Egleston Hospital. There, X-rays revealed that J. V. had at least thirteen fractures involving all four extremities.

DFCS obtained emergency custody of J. V. and placed him in the home of a family friend. In December 1997, the juvenile court held a hearing to determine whether J. V. was deprived. At the hearing, J. V.’s mother, father, and grandmother all denied hurting him and denied any knowledge of how the fractures occurred. Appellants testified that, while they knew J. V. was uncomfortable at various times from Friday, November 14 to Tuesday, November 18, they attributed the discomfort to his cold and to shots he had received at his checkup on November 12.

The State presented testimony from Dr. Michael Busch, a pediatric orthopedic surgeon who examined J. V. on November 20 and studied his X-rays. According to Dr. Busch, J. V.’s left elbow was fractured, both bones in his left forearm were completely broken, and his right forearm had an incomplete fracture. J. V.’s right fibula, femur, and shin bone were fractured. His left leg was fractured through the upper shin bone and the fibula. Dr. Busch testified that these fractures all occurred at or around the same time, within seven to ten days before the X-rays were taken. In addition, Dr. Busch testified that the X-rays showed a possible slightly older, healing fracture in J. V.’s left upper arm. The orthopedic surgeon noted that children’s bones are much more flexible than adult bones, so it is common to find incomplete fracture patterns but more uncommon to find complete breaks. Nevertheless, J. V. had a complete fracture of the ulna in which the bone was broken in two and had shifted about a quarter of an inch. Likewise, there was a complete fracture of the radius, a complete fracture of the fibula, and a complete fracture of the tibia and fibula in the other leg. The doctor said the fractures were the result of trauma, and he could find no explanation for them other than child abuse. The doctor also rejected the possibility, raised by appellants, that J. V.’s fractures resulted from osteogenesis imper-fecta, or brittle bone disease. He said the baby showed no signs of osteogenesis imperfecta and stated that for a baby to have this many fractures due to osteogenesis imperfecta, the disease would be severe and therefore apparent, and he found no signs of the disease in the X-rays. In addition, he said he had never seen or heard of two of the fractures in association with osteogenesis imperfecta. Also, a collagen study was done for signs of the disease, and the results were normal. Most importantly, the baby has continued to develop normally and has had no problems with fractures since he was taken away from his parents.

As to the cause of J. V.’s fractures, Dr. Busch saw “no other plausible explanation for them” except child abuse. He testified that some of the fractures were probably “bending injuries” caused by the application of side-to-side force, while others were consistent with a direct blow or strike. Dr. Busch thought it “extremely unlikely” that the injuries were accidental because several of J. V.’s fractures “almost never occur as a result of accidental trauma.” Radiologist Dr. Elwin Donnelly, who testified for appellants, agreed with Dr. Busch regarding the number and type of fractures. Dr. Donnelly testified, however, that the fractures did not all occur simultaneously but happened over the course of one to seventeen days before the X-rays. According to Dr. Donnelly, the fractures could be consistent either with child abuse or with accidental injury. Specifically, Dr. Donnelly testified that some of the injuries may have resulted from J. V.’s limbs striking his one-year-old cousin while he was swinging in his mechanical swing or from his wrists getting caught while the support arm of his crib was being lowered. Dr. Donnelly further testified that J. V. could not have caused the fractures himself. Although the fractures would have caused “immediate sudden pain” expressed through crying, Dr. Donnelly testified that J. V.’s caregivers may not have been aware of them because “a cry related to a fracture doesn’t differentiate itself from a cry for any other reason.”

At the close of the deprivation hearing, the juvenile court judge stated that she found by clear and convincing evidence that J. V. had been “physically abused by somebody while in the care and control of the parents.” The judge rejected the theory that J. V.’s fractures resulted from his swing or crib, stating that such products are generally safe and that the caregivers should have been watching him. Based on appellants’ complete denial of responsibility for J. V.’s fractures and their failure to provide any plan for protecting him from injury, the judge further found that J. V.’s deprivation was likely to continue in the future. Accordingly, the judge ordered that J. V. remain in the custody of DFCS.

On March 31, 1998, DFCS filed a petition to terminate the parental rights of J. V.’s parents. In October 1998, the juvenile court held a termination hearing at which many of the same witnesses testified. In addition, counsel stipulated that the record from the prior deprivation hearing would be included in the termination proceedings. Counsel also stipulated the entry into evidence of a report from Dr. Joseph Burton, a forensic pathologist who serves as chief medical examiner for metropolitan Atlanta and was an expert witness for both sides.

Dr. Burton examined J. V.’s medical records and X-rays and concluded that the fractures were seven to ten days old at the time of the X-rays, happened at or around the same time, and could not have occurred accidentally. Like Dr. Busch, Dr. Burton rejected the possibility that J. V. suffered from brittle bone disease. Dr. Burton testified that some of J. V.’s fractures were “ [virtually diagnostic for ‘physical abuse’ ” and probably resulted from jerking or twisting of the extremities. Dr. Burton noted, however, that J. V. appeared to be loved and well nourished, that he was provided with regular medical care, that there was no evidence of head or torso injuries typically associated with child abuse, and that there was no sign of very old, healing fractures. Thus, Dr. Burton concluded that the injuries probably resulted from one of J. V.’s adult caregivers improperly jerking his legs while changing his diaper or jerking his arms and legs because J. V. was crying or “fussy” and the caregiver was under stress. Dr. Burton also testified that the caregiver could have caused the fractures without intending to do so and without realizing what had happened. Nevertheless, Dr. Burton felt that it would be “unfair to this infant. . . for the system not to intervene to ensure that such injuries do not continue and do not happen again.”

Dr. Busch testified at the termination hearing that J. V.’s fractures had healed, but his left leg was slightly deformed and could require correctional surgery. Dr. Busch also testified that J. V. had suffered no further fractures since November 1997.

Appellants testified at the hearing and again denied any knowledge of how J. V.’s fractures occurred. They further denied jerking or twisting J. V.’s arms or legs or handling him in a rough manner.

Margaret Bakalini, the DFCS caseworker assigned to J. V, testified that DFCS was seeking termination of parental rights because there had been no acceptable explanation for J. V.’s very serious injuries and the only way to ensure J. V.’s safety was to place him in an adoptive home.

The record shows that DFCS developed a case plan dated December 18, 1997, to reunify J. V. with his parents. That plan required appellants to take a parenting class, to keep in contact with the DFCS case manager, and to pay child support. The parents complied with this plan; however, as the DFCS caseworker testified, there was no way to develop a reunification plan which addressed the problem that caused the baby’s injuries because the parents never explained how the injuries could have occurred.

Appellants’ expert, a licensed clinical psychologist, evaluated appellants and testified that based on what the mother told her and how the mother presented herself, she concluded that the mother “did not have anything to do with the injuries.” But, when counsel asked her if she would change her assessment if informed that the injuries to J. V. could not have happened absent abuse and that the abuse would have come from either or both parents, she replied that her assessment would change.

Finally, the mother testified that if J. V. were returned to their custody, she would stay home with him full time, would handle him even more gently than she had in the past, would cooperate fully with DFCS, and would find a doctor who speaks her language and could communicate with her about J. V.’s health and safety.

After the hearing, the juvenile court entered an order terminating the parental rights of appellants. The court found that J. V. suffered extreme physical abuse while in the care of his mother, father, or maternal grandmother, all of whom denied inflicting the injuries and failed to provide valid explanations for them. The court further found that appellants refused to acknowledge that J. V. needed protection from future injury and failed to provide a plan for such protection and that, if he were returned to them, he would go back into the very same environment in which he was injured. Accordingly, the court found that it was in J. V.’s best interest that the rights of his parents be terminated.

Case No. A99A1396

Pursuant to OCGA § 15-11-2 (8) (A), a “[djeprived child” is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals.” We have held that

[a] parent may lose custody where the court determines by clear and convincing evidence that the child is deprived and will likely be harmed by such deprivation. OCGA §§ 15-11-33 (b) (1); 15-11-34 (a) (2). Deprivation may be shown to have resulted from parental unfitness that is either intentional or unintentional misconduct resulting in the abuse or neglect of a child by what is tantamount to physical or mental incapability to care for the child.

In the Interest of C. N., 231 Ga. App. 639, 640 (1) (500 SE2d 400) (1998).

On appeal, we view the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found clear and convincing evidence of deprivation. In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998). We do not weigh the evidence or determine the credibility of witnesses. Id.

Applying this standard, we find that the juvenile court’s deprivation order was supported by clear and convincing evidence. J. V. had unexplained bruises on his arms and back on November 12. Six days later, X-rays revealed at least thirteen fractures in his arms and legs that, according to Dr. Busch, could be explained only as child abuse. Although there was no evidence concerning precisely how J. V.’s bones were broken or exactly who was responsible, clear and convincing evidence showed that J. V. was in the exclusive care of his parents and maternal grandmother from Friday, November 14 to Tuesday, November 18 — the period in which the fractures must have occurred. Finally, appellants could not explain the fractures and provided no evidence at the deprivation hearing that they would do anything differently should J. V. be returned to their custody. Based on this evidence, the juvenile court was authorized to conclude that J. V. was deprived in that he was intentionally harmed while in appellants’ care. See Rodgers v. Dept. of Human Resources, 157 Ga. App. 235, 236 (2) (276 SE2d 902) (1981) (affirming juvenile court’s finding of deprivation where baby had multiple fractures, even though “the mystery of causation was never satisfactorily unraveled”); In the Interest of G. T. T, 199 Ga. App. 706 (405 SE2d 750) (1991) (juvenile court found deprivation where two-month-old was brought to hospital with multiple fractures).

Appellants argue that the juvenile court’s order contains only conclusory statements, without reference to specific pieces of evidence, so that they cannot ascertain what the court relied upon in reaching its conclusion. We disagree. Finding[s] of fact and conclusions of law are mandatory under OCGA § 9-11-52 (a).” (Punctuation omitted.) In the Interest of D. L. G., 212 Ga. App. 353 (1) (442 SE2d 11) (1994). The juvenile court’s order sets forth the facts on which its conclusions are based — the 13 fractures of J. V.’s extremities — and thus complies with the requirements of OCGA § 9-11-52.

Appellants also challenge the juvenile court’s finding that they failed to establish a “safety plan,” arguing that the term “safety plan” is vague and not supported by any statutory requirement. As the juvenile judge explained in detail at the hearing, however, her concern was that appellants had given no indication that they would take any steps to protect J. V. from future injury should he be returned to their custody. Under these circumstances, the reference in the deprivation order to a “safety plan” was not impermissibly vague.

Case No. A99A1397

In this case, the parents appeal from the juvenile court’s order terminating their parental rights. They claim the juvenile court erred in concluding there was clear and convincing evidence of present unfitness. We disagree and affirm.

In order to terminate parental rights, a juvenile court must determine (1) that there is present clear and convincing evidence of parental misconduct or inability; and (2) that termination of parental rights is in the best interest of the child, considering the physical, mental, emotional, and moral condition and needs of the child. OCGA § 15-11-81 (a). A determination of parental misconduct or inability requires findings that (1) the child is deprived; (2) the deprivation is caused by lack of proper parental care or control; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation will likely cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors relevant to determining whether the child is without proper parental care and control are whether the parent has engaged in egregious cruel or abusive conduct toward the child and whether the parent has physically, mentally, or emotionally neglected the child. OCGA § 15-11-81 (b) (4) (B) (iv), (v). On appeal, we determine whether any rational trier of fact could have found by clear and convincing evidence that appellants’ rights to custody have been lost. In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998).

1. In their first assertion of error, appellants contend that there was no clear and convincing evidence of their present misconduct or inability. We disagree.

As discussed above, the evidence supported the juvenile court’s findings that J. V. was deprived. The evidence also supported the finding that the deprivation resulted from appellants’ lack of proper parental care or control. In addition to the expert testimony, the juvenile court at the termination hearing also had the benefit of Dr. Burton’s report, which stated in part that it was “blatantly obvious” that J. V. “has not been properly cared for” and that his injuries probably resulted from “inappropriate handling” by a single adult caregiver. This report, along with Dr. Busch’s testimony and appellants’ admission that J. V. was in their care when the injuries most likely occurred, constitutes clear and convincing evidence that J. V.’s injuries resulted from lack of proper parental care or control.

There was also clear and convincing evidence that J. V.’s deprivation would likely continue if he were returned to appellants’ custody. The past conduct of the parents is properly considered by the court in determining whether the cause of the deprivation is likely to continue. In the Interest of C. D. A., 238 Ga. App. 400, 404 (3) (519 SE2d 31) (1999). Although “ ‘evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in [his or] her natural child,’ ” In the Interest of K. J., 226 Ga. App. 303, 304 (1) (486 SE2d 899) (1997), in this case we have past unfitness in the form of parents who were twice reported to DFCS by the time their baby was four months old and a baby with extensive and severe injuries which have left him deformed and which have never been explained. The only explanation, after ruling out some form of brittle bone disease, lies with the parents themselves. They have never identified the source of the problem; therefore, the abuse is unremedied, and the home situation remains the same as when the baby suffered the broken bones.

Therefore, there was clear and convincing evidence of parental misconduct, i.e., (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will likely cause serious harm to the child. OCGA § 15-11-81 (b) (4) (A).

Finally, after the juvenile court found parental misconduct under OCGA § 15-11-81 (b), the court then had to determine whether termination was in the child’s best interest, considering the physical, mental, emotional, and moral condition of the child, including the need for a secure and stable home. OCGA § 15-11-81 (a); In the Interest of E. C., 225 Ga. App. 12, 18 (482 SE2d 522) (1997). In making this determination, the court could consider the detrimental effects of prolonged foster care on the child. In the Interest of M. L., 227 Ga. App. 114, 117 (488 SE2d 702) (1997).

In this case, the child has been in foster homes longer than he has lived with his parents. After almost a year, the parents still had not identified the problem and there was no indication that the situation would change at any time in the near future. There was also the testimony of the baby’s treating pediatric orthopedist that children who have been injured in this manner and are then returned to the family “have a significant instance of ending up reinjured and occasionally dead.”

Therefore, looking at the record in the light most favorable to upholding the juvenile court’s determination, we hold there was clear and convincing evidence from which the juvenile court could properly conclude that it was in the child’s best interest that parental rights be terminated.

2. In light of the holding above, we do not address the remaining assertions of error.

Judgments affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Smith and Eldridge, JJ, concur. Ruffin, J, concurs in Case No. A99A1396 and dissents in Case No. A99A1397.

Ruffin, Judge,

concurring in part and dissenting in part.

This is a difficult case. It illustrates perfectly the interests that must be balanced in cases involving the termination of parental rights. On the one hand, Georgia law zealously guards the rights of parents to retain custody and control of their children; on the other hand, the law protects the safety and health of children. As a remedy of last resort, the courts will terminate parental rights if the State proves parental misconduct or inability by clear and convincing evidence. Balancing these competing concerns in this case, I conclude that the State failed to carry its burden and that the juvenile court should not have terminated appellants’ parental rights. Thus, while I concur with the majority’s opinion in Case No. A99A1396, affirming the juvenile court’s order holding that J. V. is a deprived child, I respectfully dissent from the majority’s opinion in Case No. A99A1397, affirming the juvenile court’s order terminating appellants’ parental rights.

As the majority notes, to prove parental misconduct or inability justifying the termination of appellants’ parental rights, the State must present clear and convincing evidence that: (1) J. V. was deprived; (2) his deprivation was caused by a lack of proper parental care or control; (3) the cause of J. V.’s deprivation is likely to continue; and (4) continued deprivation will likely cause serious harm to J. V. I agree with the majority that the State carried its burden with respect to the first two factors. I cannot agree, however, that the State presented clear and convincing evidence that J. V.’s deprivation would likely continue if he were returned to appellants’ custody.

The majority concludes that the deprivation would likely continue based on appellants’ past conduct. Although the juvenile court was authorized to consider that conduct in evaluating the likelihood of future deprivation, “evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in [his or] her natural child; clear and convincing evidence of present unfitness is required.” There is no evidence of present unfitness in this case.

Appellants complied in every respect with the case plan established by the Department of Family & Children Services and adopted by the juvenile court to reunite them with their son. That plan required appellants to take a parenting class, to keep in contact with the DFCS case manager, and to pay child support. The majority fails to recognize that appellants did all of this and more. They took parenting classes, as well as an additional cardiopulmonary resuscitation class; they paid monthly child support for J. V; and there is no evidence that they failed to communicate with DFCS. They also visited J. V. three to four times per week, provided his formula and diapers, and washed his clothes. J. V.’s physical custodian testified that appellants followed all of DFCS’ rules during the visits, treated J. V. carefully and protectively, and did “everything to show me that they are good parents.” J. V.’s mother testified that if J. V. were returned to the custody of his parents, she would stay home with him, treat him carefully, cooperate with DFCS, and ensure that J. V. received effective medical care. Finally, appellants submitted to polygraph tests; which they passed, and were evaluated by a clinical psychologist, who testified that they did not seem capable of violence. Thus, the unrefuted evidence showed that appellants complied fully with the reunification case plan and that they are conscientious and willing to take any step required in order to be reunited with their child. Under these circumstances, Georgia law does not allow us to terminate their parental rights at this time.

The majority concludes that J. V.’s deprivation would likely continue because of appellants’ failure or inability to come forward with an explanation for his injuries. The case plan developed by DFCS, however, contained no such requirement, and there is no evidence in the record that anyone from DFCS ever demanded such an explanation from appellants as a precondition to the return of their child. We must remember that the burden of proof in a termination case lies with the State, not the parents. Having elected to remove J. V. from his parents’ custody and to develop a reunification case plan, DFCS was responsible for clearly stating the requirements of that plan:

The [case] plan . . . shall contain . . .[a] clear description of the specific actions to be taken by the parents and the specific services to be provided by [DFCS] or other appropriate agencies in order to bring about the identified changes that must be made in order for the child to be safely returned home.

Appellants were not required to read additional provisions into the case plan based upon speculation about what DFCS might really have wanted. In fact, appellants were in a particularly poor position to do so because, as DFCS knew, they are native Spanish speakers with a minimal command of the English language. Although appellants did not offer a conclusive explanation for J. V.’s injuries, that was not a requirement of the plan, and the evidence showed without dispute that appellants took all actions that were specifically required by the plan.

The majority apparently dismisses appellants’ compliance with the case plan because the plan failed to address the cause of J. V.’s injuries. The majority points out that the DFCS caseworker testified that she could not develop a meaningful plan because appellants provided no explanation for the injuries. But DFCS determined that reunification may be appropriate, and DFCS was therefore required to formulate a plan addressing “each reason requiring removal” of J. V. from appellants’ custody and prescribing “specific actions ... in order to bring about the identified changes that must be made in order for the child to be safely returned home.” The case plan could have — and probably should have — explicitly required that appellants satisfactorily explain the reasons for their son’s injuries. Alternatively, DFCS could have determined at the outset that reunification was not appropriate, or it could have proceeded as though all three caregivers were child abusers and required appropriate rehabilitative or protective measures. But DFCS took none of these steps. Instead, it chose to develop a case plan that skirted the very issue which it now blames appellants for failing to address and on which it bases its petition to terminate their parental rights: what exactly happened to J. V.? It is unfair and contrary to the law to penalize appellants for the shortcomings in the case plan developed and administered by DFCS. The whole point of a reunification plan is that the parents are entitled to regain custody of their child if they meet its requirements. Because appellants complied fully with every stated provision of the plan, I believe their parental rights should not be permanently severed at this juncture.

Decided December 1, 1999

Reconsideration denied December 20, 1999

Rebecca A. Hulsey, Wayne D. Keaton, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Edwards, Friedewald & Grayson, Robert J. Grayson, for appellee.

Like the majority, I am troubled by the number and extent of J. V.’s fractures and the absence of any conclusive explanation for them. By dissenting in this case, I do not intend in any way to minimize the horror of what happened to J. V. But I also cannot disregard the parents’ actions since the injuries occurred. As my colleagues will likely agree, we seldom see a parental rights termination case in which the parents have not only complied with every provision of the case plan, but have gone beyond the requirements of the plan to ensure the welfare of their child.

I am reminded of the adage that “bad facts make bad law.” The facts with regard to J. V.’s injuries are undeniably bad. But it remains the burden of the State to prove present parental unfitness by clear and convincing evidence. This the State failed to do. The evidence in the record simply does not allow an inference of present parental unfitness in light of appellants’ full compliance with the case plan and other actions since J. V. was removed from their custody. Accordingly, I dissent.

       The nurse called in a Spanish-speaking nurse to translate, so there was no problem with the language barrier.

       Expert testimony established that the fractures occurred within seven to ten days preceding the X-rays. As DFCS caseworker Rachel Oliver testified that J. V. did not appear to be in pain when she held him on Friday, November 14 and no broken bones were discovered during J. V.’s visit to the hospital on Saturday, November 15, it is logical to assume that the fractures occurred sometime over the weekend or on Monday, November 17.

        In re Suggs, 249 Ga. 365, 367 (2) (291 SE2d 233) (1982).

        In the Interest of K. E. B., 190 Ga. App. 121, 124 (378 SE2d 171) (1989).

       See OCGA § 15-11-81 (b) (4) (A).

       (Punctuation omitted; emphasis in original.) In the Interest of K. J., 226 Ga. App. 303, 304 (1) (486 SE2d 899) (1997).

       There is no evidence that the maternal grandmother, who also had access to the child, submitted to such testing.

       See In the Interest of J. E. E., 235 Ga. App. 247, 249-250 (509 SE2d 147) (1998) (no termination of parental rights where evidence showed natural mother complied with goals of case plan); In the Interest of K. E. B., supra at 124-125.

       In fact, the evidence showed that, with the exception of Rachel Oliver’s half-hour visit on November 14, no one from DFCS ever visited appellants for any reason.

       See In the Interest of H. L. T., 164 Ga. App. 517, 520 (298 SE2d 33) (1982).

       (Emphasis supplied.) OCGA § 15-11-41 (d) (3).

       Id.

       See OCGA § 15-11-41 (b) (4), (d).


source: Caselaw Access Project

author:
Ellington, Judge.
      Blackburn, Presiding Judge, Barnes, Judge,

license: Public Domain

text:
    A99A1602.
    WOLFORK et al. v. TACKETT et al.
    (526 SE2d 436)
   Ellington, Judge.

Georgia applies the federal doctrine of judicial estoppel to preclude the prosecution of unliquidated tort claims that discharged debtors failed to list as assets in their federal bankruptcy petitions. Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454, 455-456 (442 SE2d 265) (1994). The question in this appeal is whether a debtor’s failure to supplement a Chapter 13 bankruptcy petition or to reopen the bankruptcy proceedings so as to list a cause of action accruing after the filing of the petition but before the discharge of the bankruptcy precludes the debtor from pursuing the cause of action in a Georgia state court.

In August 1994, Lucille Wolfork filed a Chapter 13 bankruptcy petition. In November 1995, she and her daughter allegedly suffered injuries in a collision involving autos driven by Tackett and Dunn. On behalf of herself and her daughter, Wolfork sued them in October 1997 for negligence. After the bankruptcy was discharged in March 1998, Dunn moved for summary judgment on Wolfork’s personal claim on grounds of judicial estoppel. Finding Wolfork had not supplemented her petition or moved to reopen the bankruptcy so as to list the cause of action as an asset of the estate, the trial court granted summary judgment to Dunn.

All legal and equitable interests of the debtor in property as of the filing of the bankruptcy petition are considered property of the bankruptcy estate. 11 USC § 541 (a) (1). Unliquidated tort claims are personal property included as part of the estate. Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506 (484 SE2d 309) (1997). Federal bankruptcy law strictly requires the debtor to disclose all assets as part of the bankruptcy petition. Southmark, 212 Ga. App. at 455-456.

Explaining the federal doctrine of judicial estoppel, Southmark stated that a party may not assert a position in a judicial proceeding which is inconsistent with a position successfully asserted by it in a prior proceeding. Id. at 455. The failure to disclose an asset (such as a cause of action) in a bankruptcy proceeding amounts to a denial that such a claim exists and bars subsequent attempts to pursue it. Id. at 456. Accordingly, the Court in Southmark affirmed summary judgment in favor of the alleged tortfeasor where the claim, having arisen pre-petition, had not been listed in the schedule of assets in the plaintiff’s Chapter 11 bankruptcy petition. Accord Byrd, 225 Ga. App. at 508 (failure to list pre-petition tort claim in Chapter 13 petition is grounds for summary judgment).

In a Chapter 13 bankruptcy case, property of the estate also includes all property acquired by the debtor during the bankruptcy proceeding. 11 USC § 1306 (a) (1). A tort claim in favor of the debtor arising after the filing of the Chapter 13 bankruptcy petition but before the bankruptcy is closed is considered after-acquired property that is part of the estate. In re Rivera, 186 B.R. 505, 507 (D. Kan. 1995); see In re Brown, 159 B.R. 1014, 1018 (S.D. Ga. 1993); In re Cox, 214 B.R. 635, 649 (N.D. Ala. 1997). The same is not true of Chapter 7 cases. Compare In re Bobroff, 766 F2d 797, 803 (3rd Cir. 1985) and In re Fleet, 53 B.R. 833, 838 (E.D. Pa. 1985).

The duty to amend Chapter 13 bankruptcy schedules is clear. A debtor may not conceal property belonging to the estate. 18 USC § 152 (1). A debtor has an affirmative duty to supplement the list of assets with any claims arising during the pendency of the bankruptcy proceeding. Chandler v. Samford Univ., 35 FSupp.2d 861, 864 (N.D. Ala. 1999); see 11 USC § 541 (a) (7); In re Easley, 205 B.R. 334, 335 (M.D. Fla. 1996). Failure to timely amend or supplement the list of assets amounts to a denial that such a claim exists. Southmark, 212 Ga. App. at 455. Because Wolfork failed to supplement her Chapter 13 bankruptcy petition with the post-petition tort claim, she is barred by the principle of judicial estoppel from pursuing her claim after the bankruptcy proceeding was closed.

Distinguishable are those cases where the debtor moved to reopen the bankruptcy proceeding to amend the asset schedule to include the tort claim, for then the proceeds of the claim would have inured to the benefit of the creditors, and the inconsistency of declaring that no such asset existed would have been cured through amendment. Clark v. Perino, 235 Ga. App. 444, 445-446 (1) (509 SE2d 707) (1998); see Moore v. Bank of Fitzgerald, 225 Ga. App. 122, 124 (1) (483 SE2d 135) (1997); Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651-652 (478 SE2d 629) (1996). Wolfork did not attempt to reopen the case, even though the bankruptcy court had the discretion to grant a reopening under 11 USC § 350 (b). In re Schreiber, 23 F2d 428, 430 (2nd Cir. 1928); In re Daniel, 205 B.R. 346, 348 (N.D. Ga. 1997); Brown, supra, 159 B.R. at 1018. “Unscheduled assets, newly discovered assets, or concealed assets usually furnish a basis for reopening the case.” 2 Norton Bankruptcy Law & Prac. 2d, § 34-4, p. 34-6 (1997). The bankruptcy court’s power to reopen was not circumscribed by any particular time limit. In re Dodge, 138 B.R. 602, 605 (E.D. Cal. 1992). Wolfork’s decision not to seek to reopen mandates summary judgment against her.

Because of the potential impact on monetary claims, litigation and bankruptcy attorneys should carefully review the principles set forth in this opinion and act accordingly.

Judgment affirmed.

Johnson, C. J., McMurray, P. J, and Ruffin, J., concur. Andrews, P. J., and Blackburn, P. J., concur fully with the majority and specially, joined by Ellington, J. Barnes, J, dissents.

Blackburn, Presiding Judge,

concurring specially.

I concur fully in the opinion and analysis of the majority. I write separately, however, to address issues raised by the dissent, which overlooks both precedent and evidentiary requirements to reach what it deems to be the most equitable result.

Neither of the reasons given by the dissent for reversing the trial court is supported by law or fact in this case. The dissent argues that the plaintiff should be relieved of the consequences of not fulfilling her mandatory duty to update her bankruptcy petition because no evidence in the record shows that the plaintiff successfully asserted a position on her personal injury claim in the bankruptcy proceedings. To reach this conclusion, the dissent makes a series of unfounded assumptions. First, the dissent assumes that no evidence was admitted by the trial court during the summary judgment hearing in this case, despite the fact that the appellant failed to provide this Court with a transcript of that hearing. Then, based on this general assumption, the dissent more specifically assumes that the trial court never received evidence relating to the contents of the bankruptcy pleadings, including the confirmation plan. Next, the dissent theorizes what the terms of the confirmation plan, which may or may not have been placed before the trial court, might have been, and, on the basis of this speculated plan, the dissent reverses the decision of the trial court.

This analysis is problematic. As we have long held,

[w]hen an appellant omits evidence necessary for determination of issues on appeal [,] affirmation is required. It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.

(Citation and punctuation omitted.) Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998).

Under these circumstances, we must rely on the presumption in favor of the regularity of all proceedings in a court of competent jurisdiction (Siegal v. Gen. Parts Corp., 165 Ga. App. 339 (301 SE2d 292) (1983)), assume that the evidence was sufficient to support the trial court’s ruling, and affirm the judgment. Acker v. Jenkins, 178 Ga. App. 393, 394 (343 SE2d 160) (1986). See also Thomas v. Bartlett, 183 Ga. App. 412 (359 SE2d 156) (1987). When there is nothing in the record to support the contention of error, there is nothing presented to this [C]ourt for review. Brookhaven Assoc. [v. DeKalb County, 187 Ga. App. 749, 750-751 (371 SE2d 231) (1988)].

(Punctuation omitted.) City of Atlanta v. Starke, 192 Ga. App. 267, 268-269 (1) (c) (384 SE2d 419) (1989).

In reaching its opinion, the dissent not only fails to presume the regularity of the proceedings below, but it speculates what the evidence could possibly show and presumes that the trial court acted improperly on the basis of this imagined evidence. The result is that, although the burden on appeal belongs to the appellant, the dissent construes evidentiary omissions in the appellate record to benefit the appellant and hinder the appellee. This result is inapposite to our review of cases on appeal, and, as such, it cannot provide a basis for reversal of the trial court.

To support its position, the dissent cites Seamans v. True, 247 Ga. 721 (279 SE2d 447) (1981). Contrary to the dissent’s position, Seamans is factually distinguishable and does not require a different result in this case. In Seamans, the Supreme Court held:

The trial court’s order granting the defendants’ motion for summary judgment states that the grant was based upon the pleadings of the parties and the affidavit of Arthur True. Accordingly, we do not assume that evidence was presented at the motion for summary judgment hearing.

(Emphasis supplied.) Id. at 723. Therefore, in Seamans, the trial court limited its review to specifically enumerated and distinct pieces of evidence. In this case, on the other hand, the trial court’s order states that its findings were based upon “argument and citations of authority.” The dissent argues, therefore, that the trial court did not consider other documents or testimony. Contrary to the dissent’s contentions, the trial court in this case did not state that it was limiting its decision to matters in the record, as implied by the dissent. At the summary judgment hearing, the trial court may have properly considered documents which were never formally introduced into evidence or included in the appellate record, as well as testimony which may have included admissions or stipulations and other such items not before us. That is why the burden lies with the appellant to provide a transcript of the hearing or otherwise establish what occurred at the hearing. The record may also be shown as provided in OCGA § 5-6-41 (i), but appellant has not availed herself of this remedy. Therefore, we must conclude under these facts that the ruling of the trial court was authorized. Therefore, Seamans has no application here, and it does not support the dissent’s erroneous presumption of the irregularity of the trial court’s actions.

Alternatively, the dissent concludes that the trial court must be reversed because an issue of fact remains as to whether the plaintiff intentionally asserted a contradictory position in her bankruptcy pleadings. While the dissent correctly indicates that the failure to disclose an accrued cause of action when initially filing for bankruptcy must be treated as a denial that the claim exists, it argues, without citation to any authority, that a different standard should be applied to claims acquired after the initial pleadings are made. In the latter situation, the dissent proposes to apply judicial estoppel to those making affirmative misrepresentations but not to those who passively fail to supplement their bankruptcy petitions. This distinction, however, is not supported by precedent.

In Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454, 455-456 (442 SE2d 265) (1994), a case involving a filing under Chapter 11 of the Bankruptcy Code, this Court discussed the necessity to strictly enforce reporting procedures in bankruptcy cases.

These cases involve primarily the obligation placed upon the debtor in a Chapter 11 bankruptcy case to file a list of assets in which it must disclose any litigation which might arise from pre-bankruptcy matters. Compliance with disclosure requirements is essential to maintaining a bankruptcy case. In re Roberts, 117 B.R. 677; In re Hubbard, 96 B.R. 739. In the light of the stringent disclosure requirements under Chapter 11, the failure to disclose such information is viewed as amounting to a denial that such claims exist. This de facto denial triggers the application of several types of issue preclusion to bar subsequent attempts to prosecute such actions. See Oneida Motor Freight v. United Jersey Bank, 848 F2d 414; Westland Oil Dev. Corp. v. MCORP Mgmt. Solutions, 157 B.R. 100, 102; In re Standfield, 152 B.R. 528.

Id.

The mere fact that a cause of action accrues after the initial filing of a bankruptcy petition is not a sufficient reason to modify our application of judicial estoppel. Whether the property is acquired before or after the initial filing, the duty imposed on a debtor to disclose it remains the same, and compliance with disclosure requirements after the initial filing remains crucial to the maintenance of a bankruptcy case. Southmark, supra. The dissent provides neither a compelling reason for contravening the historical adherence to disclosure compliance nor any distinctions in federal law relating to such compliance which would support the result it espouses.

While I appreciate the motivation behind the dissent’s position, I must point out that this Court is neither a court of equity nor a body with state or federal legislative powers. We are not free to fashion amendments to statutory disclosure requirements to fit our sense of equity. We are bound by the explicit statutory language and precedent laid before us, and, although we may criticize these sources, we must nevertheless follow their guidance, even if we are unsatisfied with the result. The doctrine of judicial estoppel is designed to protect the integrity of the judiciary. Southmark, supra. To retain that integrity in our application of this doctrine, we must be consistent with our analysis of precedent that is clear and unambiguous. If we fail to do so, only then will the result be truly incompatible with justice.

I am authorized to state that Presiding Judge Andrews and Judge Ellington join in this special concurrence.

Barnes, Judge,

dissenting.

I respectfully dissent.

The purpose and justification for judicial estoppel are “to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” (Punctuation omitted; emphasis supplied.) Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454, 455 (442 SE2d 265) (1994). It is “directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings.” (Punctuation omitted; emphasis supplied.) Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996). Finally, it can be applied only to preclude “a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding.” (Emphasis supplied.) Southmark, supra, 212 Ga. App. at 455.

We should not apply judicial estoppel in this case for two reasons: (1) no evidence shows a previous position successfully asserted by the plaintiff; and (2) an issue of fact exists as to whether the plaintiff intentionally asserted a contradictory position.

The first reason precluding the application of judicial estoppel is rooted in the evidentiary burden placed on a party moving for summary judgment. If a defendant moves for summary judgment based upon a defense, as opposed to a lack of evidence supporting an essential element of the plaintiff’s case, the defendant must provide the trial court with evidence supporting application of the defense. See Jones v. Littlejohn, 222 Ga. App. 494, 496-497 (2) (474 SE2d 714) (1996). In this case, the defendant sought summary judgment from the trial court on the sole ground that the defense of judicial estoppel barred the plaintiff’s claim against her. As a result, she needed to come forward with evidence supporting the application of judicial estoppel to meet her burden of proof below.* At the time of the trial court’s ruling, none of the plaintiff’s bankruptcy pleadings were in the record. The fact that the plaintiff’s bankruptcy was filed on August 15, 1994, and discharged on March 30, 1998, is established only through admissions in the parties’ summary judgment pleadings. See Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 839 (1) (520 SE2d 505) (1999).

A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996). In this case, we have been provided with the entire record of the evidence before the trial court at the time it ruled on the defendant’s summary judgment motion. This record fails to show an essential requirement for application of judicial estoppel — that the plaintiff’s previous position was successfully asserted. Evidence that a plaintiff’s Chapter 13 bankruptcy case has been discharged, does not, standing alone, establish that the plaintiff “successfully asserted” an inconsistent position in the bankruptcy. A debtor’s confirmation plan could require a debtor to pay her creditors 100 percent of the money owed; in this circumstance, a failure to disclose a personal injury action would not benefit the debtor or harm the creditors. See, e.g., Donato v. Metro. Life Ins. Co., 230 B.R. 418, 424 (N.D. Cal. 1999); Elliott v. ITT Corp., 150 B.R. 36, 39 (N.D. Ill. 1992).

Federal courts recognize the necessity of the debtor’s “success” in this context and refuse to apply judicial estoppel when a Chapter 13 confirmation plan requires the debtor to pay 100 percent of the debt owed. Elliott, supra, 150 B.R. at 39. We should follow their lead and refuse to presume, as a matter of law, that a Chapter 13 bankruptcy discharge, standing alone, fulfills the defendant’s burden of proving the plaintiff’s successful assertion of an inconsistent position.

We cannot presume, from the absence of a transcript of the summary judgment hearing, that evidence was submitted during this hearing which supports the trial court’s grant of summary judgment. In Seamans v. True, 247 Ga. 721 (279 SE2d 447) (1981), our Supreme Court rejected an identical argument, stating:

The defendants note the absence of a transcript of the hearing on the motion for summary judgment and argue that this court must assume that evidence was presented at said hearing and that such evidence was sufficient to support the trial court’s grant of summary judgment. The trial court’s order granting the defendants’ motion for summary judgment states that the grant was based upon the pleadings of the parties and the affidavit of Arthur True. Accordingly, we do not assume that evidence was presented at the motion for summary judgment hearing. This argument is without merit.

Id. at 723.

In this case, the order granting summary judgment to the defendant states that the trial court’s findings were based upon “argument and citations of authority,” not evidence submitted during the hearing. It does not recite facts supporting the conclusion that Wolfork successfully asserted an inconsistent position in her Chapter 13 bankruptcy and neglects to analyze this prerequisite to the application of judicial estoppel. The only facts recited by the trial court are those included in the written arguments submitted to it by the parties. Under these circumstances, we cannot assume evidence was presented at the summary judgment hearing that supports a conclusion that is not contained in the trial court’s written order granting summary judgment. Id.

The facts and circumstances of this case are distinguishable from cases in which the trial court’s order demonstrates that it relied upon evidence not included in the record on appeal, when it ruled on a summary judgment motion. See, e.g., Lee v. Trust Co. Bank, 204 Ga. App. 28, 29 (2) (418 SE2d 407) (1992) (trial court’s order recites that evidence was presented at the summary judgment hearing, and the hearing transcript was not part of the record on appeal); Ga. Recovery v. Danley, 215 Ga. App. 236, 238 (2) (450 SE2d 263) (1994) (trial court’s order shows that evidence was presented at the summary judgment hearing, and the hearing transcript was not part of the record on appeal).

The defendant has apparently recognized the problem caused by her failure to meet her burden of proof below. After the plaintiff filed her notice of appeal on March 11, 1999, the defendant filed a “Supplemental Brief in Support of Motion for Summary Judgment” in the trial court and included, for the first time, a portion of the plaintiff’s bankruptcy pleadings labeled Exhibit “A.” She also requested “that the clerk supplement the record that has been filed with the Court of Appeals.” After transmitting the supplemental brief to this Court, the state court clerk’s office notified this Court that Exhibit “A” was not attached to the defendant’s original summary judgment motion. As a result, it should not have been sent to this Court, and we will not consider it. RC Cola Bottling Co. v. Vann, 220 Ga. App. 479, 480-481 (1) (469 SE2d 523) (1996). We note, however, that consideration of Exhibit “A” would not alter the result in this case because it does not include the confirmation plan or any other evidence showing the plaintiff succeeded in the bankruptcy action.

Because the defendant failed to meet her burden of proving the “success” component of judicial estoppel, the trial court erred when it concluded this doctrine barred the plaintiff’s claim. Our analysis does not end here, however, because judicial estoppel should not have been applied for a second, alternative reason.

In this case, we are addressing, for the first time, whether a debtor’s failure to supplement her bankruptcy petition to disclose a personal injury cause of action that accrues over a year after she filed the bankruptcy petition warrants the application of judicial estoppel as a matter of law. When analyzing this issue, we must keep in mind the purpose behind judicial estoppel — preventing intentional or calculated “assertion of divergent sworn positions.” Johnson, supra, 223 Ga. App. at 651. See also Southmark, supra, 212 Ga. App. at 455.

It is well established that a failure to disclose an accrued cause of action in response to a direct question should be treated as a denial that the claim exists and, thus, a “position” for purposes of judicial estoppel. Southmark, 212 Ga. App. at 456; Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506, 507-508 (484 SE2d 309) (1997). These cases, however, do not govern the result in this case because the plaintiff honestly answered the direct question put to her in her Chapter 13 petition.

Although she did have a duty to later supplement her bankruptcy petition to include the after-acquired cause of action, Chandler v. Samford Univ., 35 FSupp.2d 861, 864 (N.D. Ala. 1999), we should draw a distinction between affirmative misrepresentations and passive failures to supplement for purposes of judicial estoppel. An affirmative misrepresentation about an existing cause of action supports the inference, as a matter of law, that the person making the misrepresentation intentionally asserted a contradictory position. We cannot, however, draw the same inference from the passive conduct of failing to supplement a bankruptcy petition with an after-acquired cause of action, standing alone. While it could be an intentional omission warranting the application of judicial estoppel, it could also be an innocent mistake. Based on the facts of this case, the issue of whether the plaintiff intentionally asserted a contradictory position should be left for the finder of fact to decide. See Clark v. Per-ino, 235 Ga. App. 444, 446 (1) (509 SE2d 707) (1998).

Decided December 3, 1999

Reconsideration denied December 20, 1999

Graylin C. Ward, for appellants.

Cobb & Walton, Bobby L. Cobb, Harper, Waldon & Craig, Russell D. Waldon, Janice M. Wallace, Jonathan M. Adelman, for appellees.

Justice will not be served by automatically punishing a party who honestly represented that she had no personal injury causes of action at the time she filed a bankruptcy petition. Instead, a windfall is bestowed upon an undeserving party. While it is true that we are not “a court of equity” with power, for example, to issue injunctions, the principles of justice and equity should guide us when carrying out our duty to apply the law to the facts before us.

For the above-stated reasons, I respectfully dissent from the majority opinion.

       If a defendant’s motion is based upon a lack of evidence supporting an essential element of the plaintiff’s case, the Supreme Court’s decision in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) allows the defendant to meet its burden by merely pointing out the absence of evidence in the record to support the plaintiff’s case.

       This burden of proof should not be confused with the burden of proof on appeal to show error based on the record created below.

       The record does not include a transcript from the hearing on the summary judgment motion, perhaps because it was not transcribed. However, the trial court’s order states that its findings were based upon “argument and citations of authority” and there is no indication in the record that evidence was submitted to the trial court during the summary judgment hearing.

       Since this is an issue of first impression, it logically follows that authority cannot be cited to directly support this portion of the dissent’s analysis. For the same reason, this analysis does not advocate a change in the law.


author: Blackburn, Presiding Judge. Barnes, Judge,

text:
    A99A1647.
    REAGAN v. LYNCH et al.
    (524 SE2d 510)
   Blackburn, Presiding Judge.

Michael R. Reagan appeals the trial court’s order granting the motion for summary judgment of the defendants, Chet W. Lynch and C. W. L. Enterprises, Inc. d/b/a TNT Trucking in the underlying action for breach of contract, negligence, and negligent supervision. The trial court determined that Reagan’s failure to list the claims asserted herein in his bankruptcy petition, which was filed after the claims arose, judicially estopped him from pursuing this action. For the reasons discussed below, we affirm.

We review de novo a trial court’s grant of summary judgment. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995). To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

(Punctuation omitted; emphasis in original.) Jackson v. Post Properties, 236 Ga. App. 701 (513 SE2d 259) (1999).

In the present case, the record reveals that on January 2, 1996, the defendants purchased two tractors and two dump trucks from Reagan for $50,000. In accordance with a written contract, the defendants were required to make monthly payments to Reagan, who, in turn, was required to make payments to the banks which held liens on the vehicles. Reagan alleges that the defendants made only one or two payments as required by the contract. Subsequently, the lienholders repossessed all of the motor vehicles directly from the defendants.

On November 27, 1996, Reagan filed for Chapter 7 bankruptcy; however, he did not list any claims or potential claims against the defendants as assets in his bankruptcy petition. On April 3, 1997, Reagan was discharged by the bankruptcy court.

The trial court determined that Reagan was judicially estopped from bringing the underlying action because he failed to list it as an asset in his bankruptcy petition.

The doctrine of judicial estoppel arises under federal law and precludes a party from asserting a position in one judicial proceeding which is inconsistent with a position successfully asserted by the party in an earlier proceeding. The essential function and justification of judicial estoppel [are] to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings.

(Citations and punctuation omitted.) Clark v. Perino, 235 Ga. App. 444, 445 (1) (509 SE2d 707) (1998).

Although application of the doctrine of judicial estoppel is severe, whether to apply it depends entirely on the actions of the plaintiff. In Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454 (442 SE2d 265) (1994), we applied judicial estoppel to a plaintiff who failed to list his claims for legal malpractice in his Chapter 11 bankruptcy action. We determined that the plaintiff’s excuse that he had been reasonably diligent in investigating potential causes of action was without merit because the bankruptcy court required disclosure of even potential claims. Id. at 456. In Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506, 507 (484 SE2d 309) (1997), the plaintiff contended that judicial estoppel should not apply because her failure to list her claim on her Chapter 13 bankruptcy schedule was not “an intentional attempt by her to mislead the court.” Id. We affirmed the trial court’s grant of the defendant’s motion for summary judgment based upon judicial estoppel and held that neither the plaintiff’s “neglect in failing to read the schedule nor any neglect she [attributed] to her attorney [was] a ground for relieving her of the duty to disclose the claims in the bankruptcy case.” Id. at 508.

However, in Johnson v. Trust Co. Bank, 223 Ga. App. 650 (478 SE2d 629) (1996), although the plaintiff originally did not include the subject tort claim in his Chapter 7 bankruptcy, he later amended his petition to assert the claim as a potential asset. Additionally, the evidence indicated that he had given information concerning the tort claim to his attorney and the bankruptcy trustee. Therein, we held that due to the amendment to the bankruptcy petition, the plaintiff’s present position was not “inconsistent with one successfully and unequivocally asserted by him in a prior proceeding.” (Punctuation omitted.) Id. at 652. Again in Clark, supra, the plaintiff failed initially to include the subject claims in her Chapter 7 bankruptcy petition, filed pro se, but she later obtained permission from the court to amend her filings and correct the omissions. Id. at 445-446. Relying on Johnson, supra, we determined that the application of judicial estoppel was not warranted where the plaintiff had failed to gain an unfair advantage in the bankruptcy court. Id. at 651-652. We noted that by amending her petition, the plaintiff had assured that any recovery on the subject claims would inure to the benefit of her creditors. Id.

Reagan contends that judicial estoppel should not apply because he informed the bankruptcy trustee of the present claim he is asserting against the defendants herein, as evidenced by the bankruptcy trustee’s affidavit in the record. Yet, unlike the petitioners in Johnson and Clark, Reagan has neither amended his bankruptcy petition nor moved the bankruptcy court to reopen his estate to allow such an amendment. Informing the bankruptcy trustee is not notice to the court or the creditors in the bankruptcy action. Therefore, if Reagan is allowed to proceed, he will have obtained an unfair advantage in the bankruptcy court because any recovery had in the present action will not inure to the benefit of his creditors which have not been fully compensated.

Decided November 1, 1999.

Calvin A. Rouse, for appellant.

Mark A. Cleary, for appellees.

Based on the foregoing, the present action is controlled by Southmark, supra, and Byrd, supra, and the trial court’s application of judicial estoppel is affirmed.

Judgment affirmed.

Eldridge, J., concurs. Barnes, J., concurs specially.

Barnes, Judge,

concurring specially.

I concur fully in the judgment and opinion of the majority. I write separately, however, to emphasize to the bar that a party like the plaintiff in this case can avoid the application of judicial estoppel simply by filing a motion to amend the debtor’s bankruptcy petition or a motion to reopen the debtor’s bankruptcy case to declare the omitted claim or cause of action. This course of conduct guarantees that both the bankruptcy court and the debtor’s creditors are accurately advised of the debtor’s assets. With this information, the bankruptcy court can make a fair and equitable distribution of the debtor’s estate, and the debtor’s creditors can make an informed decision about their position and any settlement they enter into with the debtor. As the majority correctly states, notice to the trustee alone does not accomplish these goals, but a simple amendment or motion to reopen would.

I further note that the record in this case, unlike the record in Wolfork v. Tackett, 241 Ga. App. 633 (526 SE2d 436) (1999), includes a copy of the plaintiff’s confirmation plan which shows that his creditors were not fully compensated in his bankruptcy action. As a result, we can conclude that he successfully asserted a contrary position in the bankruptcy and apply judicial estoppel.


author: Ruffin, Judge.

text:
    A99A1841.
    GLORE v. THE STATE.
    (526 SE2d 630)
   Ruffin, Judge.

Hazo Glore appeals his conviction for aggravated assault, arguing that he was merely present at the scene of the crime and did not participate in any way. As there was sufficient evidence that Glore’s role exceeded that of mere presence at the scene, and because Glore’s other grounds for appeal lack merit, we affirm his conviction.

1. We evaluate Glore’s challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, construing the evidence in the light most favorable to the verdict. We do not weigh the evidence or determine the credibility of the witnesses. As long as some competent evidence — even though contradicted — supports each element of the State’s case, we must affirm the judgment on the jury’s verdict.

Applying this standard, the evidence at trial was as follows. In December 1997, police conducted a “reverse sting” operation in a high-crime area of Cobb County. Four undercover officers posing as drug dealers stood on a comer attempting to sell fake crack cocaine to passersby, while other officers waited up the street to arrest any purchasers. Glore and a friend, Aric Milton, pulled into the parking lot of a strip mall across the street from the undercover officers. According to Glore, who was then 18, he and Milton were on their way to a nearby high school to pick up girls. First, however, they stopped at the strip mall to shine the car, which belonged to Milton, and to shop for clothes at one of the stores. Milton got out and began applying silicone to the top of the car, while Glore worked on one of the tires.

Officer Quinn Harris, dressed like a drug dealer, approached Milton and Glore and said, “Do you need anything? . . . Are you straight?” Harris testified that, in street lingo, his questions were an offer to sell drugs. Neither Milton nor Glore answered, so Harris began to walk away. Milton then opened the trunk of the car, took out a shotgun, and pointed it at Harris. Harris raised his hands in the air and backed away. According to Glore, Milton told Harris, ‘You are not going to rob me.” Harris testified that Glore said to Milton, “Let’s do this” or “Let’s take care of him now,” which Harris interpreted as a threat to his life. Harris also testified that Glore lifted his shirt as if reaching for a gun.

From his undercover position across the street, Officer David Gordon saw Harris raise his hands as Milton and Glore approached him “aggressively.” Thinking Harris was in danger, Gordon ran toward him and yelled “Hey!” to alert other officers in the area. The yell distracted Milton, allowing Harris to grab a gun he had concealed in the small part of his back. Harris fired the gun at Milton and Glore, who both turned and fled. Other officers stationed nearby ran to the scene, chased Milton and Glore, and arrested them. The officers never saw Glore with a weapon and found no weapon on his person.

At the police station, Glore waived his Miranda rights and agreed to talk to police. Glore said that when Harris approached Milton and him, he thought Harris was trying to rob them. Glore explained that he had been robbed in the past after being approached in the same manner as Harris had approached them. He said he did not know that Milton was going to pull a gun on Harris, and he insisted that he never meant to rob Harris. Nevertheless, Glore told the officers that after Milton pulled the gun, he (Glore) asked Harris, “How much money you got on you?” Glore could not explain why he asked the question, stating only that he was trying to get away. In addition, Glore admitted that he said something to the effect of, “We’ll take care of this right here,” explaining that “you just get tired of people just walking up on you.”

Glore and Milton were charged with the attempted armed robbery of Harris and aggravated assault by pointing a shotgun at Harris. They were tried together, with separate counsel. Glore testified at trial, and an audiotape of his conversation with police was played for the jury. Both defendants were found guilty of aggravated assault but acquitted of attempted armed robbery.

Glore asserts that the evidence shows, at most, that he was present at the scene when Milton decided to pull a gun on Harris. We have held repeatedly that mere presence at the scene of a crime is not sufficient evidence to convict a defendant of being a party to a crime. A jury may infer criminal intent, however, from the defendant’s conduct before, during, and after the crime. Evidence that the defendant intentionally advised, encouraged, or counseled someone else to commit the crime is sufficient to sustain the defendant’s conviction for that crime.

Although the case was close, we find that there was sufficient evidence to conclude that Glore encouraged Milton to point the shotgun at Harris. Officer Gordon testified that both Milton and Glore approached Harris “aggressively.” Harris testified that after Milton pulled the gun, Glore said, “Let’s do this” or “Let’s take care of him now,” implying a joint effort. Harris also testified that he saw Glore lift his shirt as though reaching for a weapon, suggesting an intent to scare or intimidate Harris. In addition, Glore admitted to police that he asked Harris, “How much money you got?” while Milton was pointing the gun. Although the jury acquitted Glore of attempted armed robbery, they could have interpreted Glore’s question as further evidence of his intent to participate with Milton in the endeavor rather than remain a passive bystander. Finally, although Glore insisted that he wanted to leave the scene as soon as he saw the shotgun, there was evidence that he did not run until Harris started shooting at him. Thus, even though there was no evidence that Glore and Milton planned in advance to commit aggravated assault upon Harris, the jury was authorized under the circumstances to infer that once Milton pulled the gun, Glore encouraged him and participated in the act rather than passively standing by.

2. Glore contends that the trial court erred in recharging the jury. During deliberations, the jury sent the following question to the trial court: “Can we have the charges and legal explanations of the following charges reread to us. . . . Aggravated assault, crime of armed robbery. . . .” The trial court asked the jury foreperson whether the jury simply wanted the definitions of the crimes reread or whether they wanted something else. The foreperson said they wanted to hear the definitions again, and the judge then repeated them. Glore asserts that the recharge should have included instructions on party to a crime, the defenses of justification and mistake of fact, and mere presence and mere association — all of which were part of the original charge. We disagree.

When the jury requests a recharge on a specific point of law, “the trial court has discretion to also give or not give additional instructions.” We review the charges as a whole — including the initial charge — to determine whether the trial court abused its discretion in the scope of the recharge. Here, the trial court initially instructed the jury fully on Glore’s and Milton’s defenses to the charges, and Glore does not object to those instructions. In response to the trial court’s questions, the jury foreperson clarified that the jury wanted to hear only the definitions of the crimes charged. The record does not show that the jury was confused about the matters on which Glore sought recharges or that the trial court’s repetition of the definitions of aggravated assault and armed robbery was misleading in any way. Accordingly, we find no abuse of discretion.

3. Finally, Glore argues that the trial court erred in denying his claim of ineffective assistance of counsel. To prevail on this claim, Glore must show both that trial counsel’s performance was objectively deficient and that this deficiency prejudiced his defense.* “There is a strong presumption that trial counsel’s performance [fell] within the wide range of reasonable professional assistance, and that any challenged action . . . [was] sound trial strategy.” We, must affirm the trial court’s finding that counsel was effective unless it is clearly erroneous.

Glore submits a laundry list of alleged errors by trial counsel, all of which we reject. Glore asserts that counsel met with him only twice before trial, failed to file any discovery motions, did not review the transcript of a probable cause hearing until the day before trial, failed to interview the witnesses for the State and for his co-defendant, did not request a Jackson-Denno hearing, did not listen to the audiotape of Glore’s statement to police before trial, filed no written requests to charge, and did not reserve objections to the jury charges. Counsel testified, however, that he met with Glore three or four times outside of court, that he strategized regularly with Milton’s attorney, that he read a transcript of the audiotape before trial, and that he made oral requests to charge which were all granted. Counsel explained that he had no reason to file discovery motions because the prosecutor sent him discovery materials and he reviewed the State’s complete file at least twice before trial. He stated that he did not request a Jackson-Denno hearing or seek to suppress Glore’s statement to police because he thought there were no grounds for doing so. As for counsel’s failure to interview witnesses before trial, the State’s witnesses — all law enforcement officials — gave detailed statements that were in the files reviewed by Glore’s counsel, and Milton’s sole witness was interviewed by Milton’s attorney, who discussed the interview with Glore’s counsel.

The trial court found that Glore’s attorney was very effective, that his closing argument was “nothing short of brilliant,” and that he almost, won the case. The court further found that most of the actions challenged by Glore were matters of trial strategy. Finally, the court noted that counsel’s failure to “fil[e] a half inch of discovery materials and fil[e] frivolous motions and so forth” did not make him ineffective. Based on the record, including counsel’s unrefuted testimony at the motion for new trial hearing, we cannot conclude that the trial court’s findings were clearly erroneous. And even assuming counsel’s performance was deficient, Glore has failed to show that the outcome of his trial would have been different but for counsel’s actions.

Decided December 6, 1999

Reconsideration denied December 20, 1999.

Amelia G. Pray, for appellant.

Patrick H. Head, District Attorney, Andrew J. Saliba, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Culberson v. State, 236 Ga. App. 482 (512 SE2d 367) (1999).

       Id.

       Id.

       See, e.g., id.

       Id.

       See OCGA § 16-2-20 (b) (4).

       (Punctuation omitted.) Kahn v. State, 235 Ga. App. 229, 232 (4) (509 SE2d 137) (1998).

       Id.

       See Miller v. State, 221 Ga. App. 718, 720 (1) (472 SE2d 697) (1996). Compare Miller

        v. State, 236 Ga. App. 825, 830-831 (4) (513 SE2d 27) (1999) (where jury’s question indicated confusion on the law of proximate cause, trial court erred by failing to instruct jury on that point).

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       (Punctuation omitted.) Sanders v. State, 236 Ga. App. 578, 581 (2) (512 SE2d 678) (1999).

       Id.

       See, e.g., Harper v. State, 232 Ga. App. 224, 227 (2) (d) (501 SE2d 591) (1998); Hightower v. State, 227 Ga. App. 74, 79 (c) (487 SE2d 646) (1997) (physical precedent only).

       See Sanders, supra at 582.


author: Miller, Judge.

text:
    A99A1378.
    A99A1379.
    LEE et al. v. AMERICAN CENTRAL INSURANCE COMPANY et al. KAPLAN-WALKER INSURANCE SERVICES, INC. et al. v. AMERICAN CENTRAL INSURANCE COMPANY.
    (530 SE2d 727)
   Miller, Judge.

Dr. Kuo Lee and K. Lee Enterprises, Inc. sued American Central Insurance Company, Kaplan-Walker Insurance Services, Inc., and Kaplan-Truesdel Insurance Agency, Inc. to recover policy proceeds and damages, after a fire destroyed property owned by Lee and managed by K. Lee Enterprises. When American and Kaplan moved for summary judgment, the trial court granted American’s motion and denied Kaplan’s, which ruling Lee and K. Lee Enterprises appeal and Kaplan cross-appeals.

Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.* Applying the de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party.

Viewed in this light, the record reveals that Lee, as an individual, owned title to the premises located at 4500 Forsyth Road, Macon. Lee was also the president and majority shareholder of K. Lee Enterprises. Lee testified that “K. Lee Enterprises” referred to his corporation. On February 1, 1993, K. Lee Enterprises as landlord leased the property to Andy and Tony Tham, the principal officers of Fortune Garden, Inc., for use as a Chinese restaurant. Lee executed the lease on behalf of K. Lee Enterprises.

The lease required that the Thams maintain insurance on the building and provide K. Lee Enterprises with a copy of the insurance policy. Mrs. Tham obtained an insurance policy which listed Fortune Garden as the named insured and K. Lee Enterprises as the mortgagee under the additional interests section of the policy from Kaplan-Truesdel Insurance Agency, Inc. (now Kaplan-Walker Insurance Services, Inc.). After Lee and the Thams received copies of the policy, the parties changed the policy to add Citizens Bank as a mortgagee.

On October 31, 1993, the building was totally destroyed by fire. Following an investigation, American determined that the principals of Fortune Garden intentionally set the fire and denied the Thams’ claim for coverage under the policy. American denied Lee’s individual claim because he was not listed as an additional insured, or in any other fashion on the policy. American also denied the claim of K. Lee Enterprises because it did not have an insurable interest in the property.

Case No. A99A1378

On appeal, Lee and K. Lee Enterprises enumerate as error (1) the court’s ruling that American was not negligent regarding the incorrect policy designations, (2) the court’s ruling that Lee and K. Lee Enterprises were not entitled to coverage as third-party beneficiaries of the insurance policy, (3) the court’s ruling that reformation of the insurance policy was not an appropriate remedy, and (4) the court’s ruling that the “ATIMA” (as their interests may appear) language of the policy did not affect their interests under the policy.

1. The trial court found that K. Lee Enterprises did not have an insurable interest in the property. Because no party has appealed this determination, the trial court’s decision on this matter stands. We affirm summary judgment to American with respect to K. Lee Enterprises.

2. Lee argues that American negligently failed to investigate the policy designations and failed to determine the true owner of the property. We disagree. An insurance company that has had no business dealings with a third party to the insurance policy owes no duty to that party to investigate the accuracy of the policy’s designations. Here, the evidence shows that Mrs. Tham procured the insurance policy from Kaplan on behalf of Fortune and K. Lee Enterprises. The underwriter communicated with the insurance agent, and the policy was issued in the format the parties requested. The underwriter was not informed that Lee owned the property as an individual, or that K. Lee Enterprises did not have a mortgagee interest. Lee was not listed on the policy and did not conduct business with American as related to the policy. Moreover, an insured has a duty to read and examine an insurance policy to determine whether the coverage requested was procured. Thus, American did not have a legal duty to Lee, as an individual, under the contract.

3. Lee also argues that American should provide coverage under the contract as he was a third-party beneficiary to the insurance policy. In order for a third party to have standing to enforce a contract, it must clearly appear from the contract that it was intended for his benefit. “ ‘The mere fact that he would benefit from performance of the agreement is not alone sufficient.’ ” Lee lacks standing to enforce the subject policy as a third-party beneficiary. The insurance policy covers the interests of K. Lee Enterprises, not the interests of Lee. No evidence shows that the insurance contract was made for his individual benefit, and this precludes his action against American to enforce the contract.

4. Lee argues that the trial court erred in refusing to reform the insurance policy between Fortune and K. Lee Enterprises. Lee claims that he is entitled to have the contract reformed based on mutual mistake. We disagree. Reformation of a contract is an equitable remedy for correcting an instrument to make it express the true intention of the parties, where from some cause, such as fraud, accident, or mistake, it does not express such intention. “The remedy is not available for the purpose of making a new and different contract for the parties, but is confined to establishment of the actual agreement.” Where reformation is sought on the ground of mutual mistake, it must, of course, be proved to be the mistake of both parties.

Here, the record affirmatively demonstrates the absence of a mutual mistake by the contracting parties. It is undisputed that Mrs. Tham told the insurance agent to insure the property in the name of the landlord and corporate entity K. Lee Enterprises. Although the lease listed Lee as the owner, the landlord was K. Lee Enterprises. Moreover, Mrs. Tham testified that after she read the policy, she did not think it was necessary to make changes to the policy. Thus, Lee fails to demonstrate the existence of a mutual mistake by the contracting parties, and the argument fails.

5. Lee’s final argument that he is entitled to coverage under the ATIMA language in the mortgagee clause is without merit. Ins. Co. of North America v. Gulf Oil Corp. held that the phrase “as their interest may appear” in a mortgagee clause refers to the mortgagee interest in the indebtedness secured by the property and not the type of interest the mortgagee had in the property. Here the ATIMA language was added to the policy when Citizens Bank was added as a mortgagee. This adds credence to the fact that the language refers to the indebtedness of the property and not the type of interest the mortgagee retains in the property.

The trial court did not err in granting summary judgment to American on Lee’s individual claims to the policy.

Case No. A99A1379

6. On appeal, Kaplan enumerates as error the trial court’s denial of its motion for summary judgment. We hold that summary judgment should have been granted to Kaplan.

Some evidence showed that Kaplan received an instruction from a real estate agent to add Lee as an additional insured. Nevertheless, an insurance agent is not liable for failing to follow instructions where the mistake is readily apparent on the face of the policy and the insured receives a copy of the policy and does not, prior to the loss, ask'that the policy be changed. Here the policy clearly listed K. Lee Enterprises as a mortgagee and made no mention of Dr. Lee. This was readily apparent. The insured received a copy of this policy, read it, and saw no need to make any changes, following which the fire occurred. Accordingly, Kaplan cannot be liable for failing to follow instructions.

Decided December 20, 1999.

Smith & Harrington, Wilton D. Harrington, John P. Harrington, Robert S. Slocumb, for Lee et al.

Mozley, Finlay son & Loggins, Robert M. Finlayson II, Edward C. Bresee, for American Central Insurance Company.

Lokey & Smith, Charles M. Lokey, Malcolm Smith, Kevin A. Doyle, for Kaplan-Walker Insurance Services, Inc. et al.

The trial court erred in denying Kaplan’s motion for summary judgment.

Judgment affirmed in Case No. A99A1378. Judgment reversed in

Case No. A99A1379.

Pope, P. J., and Smith, J., concur.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See Black v. Hardin, 255 Ga. 239, 240 (3) (336 SE2d 754) (1985).

       See OCGA § 33-24-4 (b).

        Creative Underwriters v. Heilman, 141 Ga. App. 740, 741 (234 SE2d 371) (1977).

        Jim Anderson & Co. v. Partraining Corp., 216 Ga. App. 344, 345 (2) (454 SE2d 210) (1995).

        Johannes v. Mitchell, 220 Ga. App. 102, 104 (1) (469 SE2d 255) (1996); see Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976) (third-party beneficiaries cannot enforce contract unless it clearly appears from the contract that it was intended for their benefit).

       (Citations omitted.) Miree v. United States, 242 Ga. 126, 135 (3) (249 SE2d 573) (1978).

       Cf. OCGA § 9-2-20 (b); see City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 6 (3) (421 SE2d 113) (1992).

        Cotton States Mut. Ins. Co. v. Woodruff, 215 Ga. App. 511 (1) (451 SE2d 106) (1994).

       (Citation and punctuation omitted.) Id. at 511-512.

        Layfield v. Sanford, 247 Ga. 92, 93 (274 SE2d 450) (1981).

       106 Ga. App. 382, 385 (127 SE2d 43) (1962).

       See, e.g., Brooks Brown Ins. Agency v. Harden, 236 Ga. App. 781, 783-784 (2) (513 SE2d 755) (1999) (“it was [the insured’s] duty to read the policy and to notify the insurer if it was incorrect”); England v. Ga.-Fla. Co., 198 Ga. App. 704 (1) (402 SE2d 783) (1991); McCullohs Svc. Station v. Wilkes, 183 Ga. App. 687, 690 (1) (359 SE2d 745) (1987). Compare Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268, 270 (210 SE2d 801) (1974) (mistake not readily apparent).