author: Andrews, Presiding Judge.

text:
    A01A0322, A01A0323.
    SKB INDUSTRIES, INC. v. INSITE; and vice versa.
    (551 SE2d 380)
   Andrews, Presiding Judge.

The appeal and cross-appeal in this case are from jury verdicts rendered in a dispute between a contractor and a subcontractor over work on a construction project placed for bid. The contractor, Insite, a division of Nu-Stone Surfacing, Inc., sued its subcontractor, SKB Industries, Inc., on the basis of promissory estoppel claiming the bid SKB submitted to Insite was incorporated into Insite’s winning bid on the project, and that Insite was damaged when SKB failed to do a substantial part of the work it promised to do in its bid. The jury found for Insite on this claim and awarded $711,573.42 in damages. The jury also found for Insite on its claims that SKB tortiously interfered with Insite’s contractual relationship with the project’s general contractor, causing $82,561.29 in damages, and that Insite was entitied to $50,000 in litigation expenses pursuant to OCGA § 13-6-11. SKB counterclaimed against Insite for breach of contract claiming Insite failed to pay it for the portion of the work it completed on the project. The jury awarded SKB $47,150 on the counterclaim along with litigation expenses pursuant to OCGA § 13-6-11 in the amount of$l.

In Case No. A01A0322, SKB appeals from the verdicts for Insite and from the award in its favor for $1 in litigation expenses, claiming the amount of expenses awarded was inadequate. We find there was evidence supporting the verdict for Insite on the basis of promissory estoppel, but no evidence to support the verdict for Insite on the tortious interference claim. Although the evidence supported the jury’s award of litigation expenses for Insite, we reverse and remand this award to allow Insite to prove the amount of expenses attributable solely to the claim on which it prevailed. There was also evidence supporting the jury’s award of litigation expenses for SKB in the amount of $1. Despite evidence that SKB paid expenses in excess of the award, the jury was authorized to conclude that the reasonableness and value of those expenses were less than the sums paid. In Insite’s cross-appeal in Case No. A01A0323 from the verdicts for SKB, we find there was evidence supporting the verdict awarding SKB $47,150 for breach of contract and awarding $1 for expenses of litigation.

Case No. A01A0322

1. SKB contends the trial court erred by allowing Insite to pursue its claim based on promissory estoppel.

This claim was based on evidence that Beers Construction Company, a general contractor, was accepting bids for work to build the Georgia International Plaza in preparation for the 1996 Summer Olympic Games in Atlanta. The project comprised two elements: building large structural concrete planting containers across the top of an existing parking deck (hardscaping), and placing soil, plants, and drainage features in the containers to create a landscaped plaza on top of the deck (landscaping). Insite, a hardscaping contractor, was preparing to submit a bid to Beers to do both the hardscaping and landscaping work on the project. For the purpose of submitting a bid for the whole project, Insite received a bid from SKB, a landscaping subcontractor, to do the landscaping portion of the work for $1,085,222.50. Insite included SKB’s bid in its bid to Beers to do the whole project for $3,161,411.

Insite’s bid was significantly lower than the next lowest bid on the project, and Beers suspected that the landscaping portion of the bid from SKB may not have been based on materials specified by the contract documents for the project. When this concern was brought to SKB’s attention, SKB confirmed to Beers and Insite that it had. received all the documents containing the project specifications and that its bid to Insite was based on all the required materials. However, SKB subsequently informed Insite that its bid was not based on the required materials, but rather included lower priced materials not approved in the project specifications. Subsequently, SKB sent Insite a revised bid to do the landscaping work with the required materials for a higher price. Ultimately, a change in the project specifications was negotiated by Beers to allow SKB to use materials less expensive than those originally required, and SKB assured Insite that it would do the landscaping work using these materials. After SKB made these assurances, Beers accepted Insite’s bid, and Insite became contractually obligated to perform the hardscaping and landscaping work on the project for the amount of its bid to Beers.

Insite sent SKB a written subcontract showing a new price for the landscaping portion of the work in the amount of $1,112,222.50 based on the use of the newly approved materials. After receiving the subcontract, SKB sent Insite a notice to contract and requested an initial payment for work making reference to the subcontract amount of $1,112,222.50. However, SKB never signed the subcontract and ultimately refused to do a substantial portion of the landscaping work included in its bid. Because of SKB’s refusal to perform all the work included in its bid and the time constraints of the project, Insite was forced to perform landscaping work in which it had no expertise, and which cost it substantially more to do than the price for this work included in SKB’s bid. Although SKB refused to fully perform the work in its bid, it later entered into a written subcontract with Insite to perform a small portion of the work included in its bid. SKB claimed it refused to perform because of disputes over language in the first subcontract sent to it by Insite, but there was also evidence from which the jury could have concluded that, after SKB assured Insite it would do the bid work, SKB refused to perform because it realized it had mistakenly bid too low on portions of the landscape work.

Even though there was no binding contract between Insite and SKB for the portion of the landscape work at issue, there was evidence supporting Insite’s promissory estoppel claim for the difference between the cost it incurred in performing the landscape work SKB refused to do and the price for this work submitted by SKB in its bid, as revised for the new materials. Insite’s promissory estoppel claim required proof that: (1) SKB made a promise to do the landscape work in the bid it submitted to Insite; (2) SKB should have expected that Insite would rely on the promise; (3) Insite did rely on the promise to its detriment; and (4) injustice can be avoided only by enforcement of the promise. OCGA § 13-3-44 (a); DPLM, Ltd. v. J. H. Harvey Co., 241 Ga. App. 219, 220-221 (526 SE2d 409) (1999). SKB clearly expected Insite to rely on its bid because it was submitted to Insite for the express purpose of allowing Insite to include it in the bid made by Insite to Beers for the whole project. It was also foreseeable to SKB that Insite would suffer damage if SKB refused to perform the bid work after Insite relied on SKB’s bid as a basis for Insite’s bid to Beers. There was no evidence that SKB’s bid was intended to be revocable at any time before acceptance. Under these circumstances, Insite’s reliance on SKB’s bid provided consideration sufficient under the principle of promissory estoppel to imply an enforceable promise by SKB to keep its bid offer to Insite open for a reasonable period of time to allow Insite to accept the bid after Beers awarded Insite the project. Loy’s Office Supplies v. Steelcase, Inc., 174 Ga. App. 701, 702 (331 SE2d 75) (1985); see Drennan v. Star Paving Co., 51 Cal.2d 409 (333 P2d 757) (1958). After Insite was awarded the project, it promptly notified SKB that its bid was accepted and tendered SKB the landscape work at the bid price as revised by the parties.

We find no merit in SKB’s contention that the written subcontract it subsequently entered into with Insite to perform a portion of the landscape work represented the entire agreement between the parties for all the landscape work and rendered promissory estoppel inapplicable. Certainly, if Insite and SKB had reached a subsequent agreement covering all the landscaping work in the bid, then Insite could not claim it detrimentally relied on SKB’s bid, and promissory estoppel would not apply. Atlanta Nat. Real Estate Trust v. Tally, 243 Ga. 247, 249 (253 SE2d 692) (1979); W. R. Grace & Co. v. Taco Tico Acquisition Corp., 216 Ga. App. 423, 426 (454 SE2d 789) (1995). However, the subcontract expressly states that the landscaping work which SKB refused to perform was excluded from the subcontract. We decline to accept SKB’s contention that the work expressly excluded should be deemed included because the subcontract contains a clause excluding it. Even if there was some ambiguity in the subcontract as to whether Insite intended to release SKB from its bid, evidence admissible under the parol evidence rule which explained the ambiguity was presented showing that Insite and SKB had no such intention. Presidential Financial Corp. v. Francis A. Bonanno, Inc., 244 Ga. App. 430, 435 (535 SE2d 809) (2000).

SKB further contends that admission of evidence in support of Insite’s promissory estoppel claim violated the statute of frauds by enforcing a promise that created, in effect, an oral contract for the landscaping work that could not be performed within one year under the terms of the project. See OCGA § 13-5-30 (5) (agreements not to be performed within one year must be in writing). Assuming, without deciding, that the statute of frauds is applicable, its basic purpose is to prevent fraud. It does not operate to prevent use of the equitable principle of promissory estoppel to enforce a promise which was expected to and did induce detrimental reliance. 20/20 Vision Center v. Hudgens, 256 Ga. 129, 135 (345 SE2d 330) (1986); Kamat v. Allatoona Fed. Sav. Bank, 231 Ga. App. 259, 263 (498 SE2d 152) (1998).

2. We agree, however, with SKB’s contention that there was no evidence to support the jury’s award of damages against it for tortious interference with Insite’s contractual relationship with Beers.

The evidence showed that Insite refused to pay SKB for the portion of the landscaping work it completed pursuant to the written subcontract, and SKB filed a suit against Beers and its bonding company seeking payment for this work in the amount of $392,150 under Beers’s payment bond on the project. It is undisputed that SKB was within its rights in filing suit on the payment bond. Nevertheless, when Beers settled the suit by making a $345,000 payment to SKB, Insite claimed the direct payment to SKB by Beers violated its contract with Beers and that SKB tortiously interfered with the contract by inducing the payment. We note that the $47,150 difference between the amount sued for on the bond and the settlement paid to SKB was the sum awarded by the jury to SKB in its breach of contract counterclaim against Insite.

Even assuming the tortious interference claim was viable because SKB could be considered a stranger to both the contract between Insite and Beers and the business relationship giving rise to it (compare Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 609 (503 SE2d 278) (1998)), there was no evidence to support a finding that SKB intentionally induced Beers to breach its contractual relationship with Insite. Id. at 608. The evidence cited by Insite showed only that SKB sued on the payment bond, discussed settlement of the suit with Beers, and received payment "rom Beers. The award of $82,561.29 for tortious interference must be reversed.

3. Contrary to SKB’s contention, we find there was sufficient evidence of bad faith by SKB to create a jury issue as to the award of litigation expenses under OCGA § 13-6-11. There was evidence from which the jury could conclude that, after SKB realized it had mistakenly bid too low on parts of the bid submitted to Insite, it acted in bad faith by refusing to cooperate with Insite to perform the work after Beers awarded the project to Insite. Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 750-751 (542 SE2d 151) (2000).

Nevertheless, Insite was entitled only to expenses of litigation attributable solely to the promissory estoppel claim on which it prevailed. Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993). The jury rendered verdicts in favor of SKB on three other claims by Insite, and the award on Insite’s tortious interference claim is reversed by this decision. Because the award was made in a lump sum and Insite did not prove the amount of litigation expenses attributable solely to the promissory estoppel claim, we reverse the award of those expenses and remand the case to the trial court for an evidentiary hearing to allow Insite to establish the amount of expenses attributable solely to the claim on which it prevailed. United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (475 SE2d 601) (1996).

4. Because the $47,150 awarded to SKB on its breach of contract counterclaim against Insite was not a liquidated sum certain, we find no error in the trial court’s refusal to award pre-judgment interest to SKB on this amount. This award was for the difference between the amount claimed due by SKB on its written subcontract with Insite, and the payment SKB received from Beers to settle SKB’s suit to collect on the subcontract against the payment bond. Disputes between Insite and SKB based on set-off and back charges due under the subcontract rendered the amount of these damages unliquidated and, therefore, not subject to pre-judgment interest. PDA, Inc. v. Haas Corp., 185 Ga. App. 785, 787 (366 SE2d 169) (1988).

5. SKB contends it was entitled to a new trial on its claim for expenses of litigation under OCGA § 13-6-11 because the jury awarded it $1 on this claim, but there was undisputed evidence that it paid attorney fees in excess of the award. Regardless of the amount paid, the reasonableness and value of the expenses of litigation and attorney fees under OCGA § 13-6-11 were for the jury to determine. American Med. Transport Group v. Glo-An, Inc., 235 Ga. App. 464, 466 (509 SE2d 738) (1998); Patterson & Co. v. Peterson, 15 Ga. App. 680, 684 (84 SE 163) (1914).

Case No. A01A0323

6. Insite contends the $711,573.42 in damages awarded on its promissory estoppel claim was inadequate and inconsistent with uncontradicted evidence that it sustained losses of $958,740.69. Included in the $958,740.69 figure was $82,561.29 of interest calculated by Insite on sums paid by Beers to SKB as a result of the payment bond suit (which was the amount awarded on Insite’s tortious interference claim), and $164,605.98 in pre-judgment interest calculated by Insite on the total cost incurred by it to perform bid work SKB refused to do. The jury deducted these interest items and awarded damages totaling $711,573.42. Contrary to Insite’s contention, the jury did not ignore undisputed evidence, but refused to award the interest sought by Insite. The verdict was not inadequate or the result of gross mistake or bias, and no new trial on damages is warranted. OCGA § 13-6-4; Morris v. Savannah Valley Realty, 233 Ga. App. 762, 765 (505 SE2d 259) (1998).

Decided June 25, 2001

Reconsideration denied July 16, 2001

Schreeder, Wheeler & Flint, David H. Flint, Lynn C. Stewart, Timothy C. Batten, Mark W. Forsling, for appellant.

Morris, Manning & Martin, Bruce C. Smith, William J. Sheppard, for appellee.

7. We find no error in the award of $47,150 in damages on SKB’s breach of contract counterclaim. The jury resolved conflicting testimony as to the amount owed on the written subcontract by awarding SKB the difference between the $392,150 it sought on this claim under the Beers payment bond, and the $345,000 payment made directly to SKB by Beers.

Judgment affirmed in Case No. A01A0323. Judgment affirmed in part, reversed in part and remanded with directions in Case No. A01A0322.

Eldridge and Miller, JJ, concur.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A01A0925.
    BARRERA-PALAMIN v. THE STATE.
    (551 SE2d 76)
   Ellington, Judge.

After a bench trial, Bemabe Barrera-Palamin was convicted of voluntary manslaughter, ÓCGA § 16-5-2 (a). Barrera appeals, challenging the denial of his motion to suppress and the sufficiency of the evidence. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the record shows that on the evening of July 21, 1999, Barrera argued with Orlando Maldonado in a bar near his residence in Dalton. Maldonado and a friend left soon after the argument; Barrera followed them out. Several hours later, at 1:39 a.m., Barrera was arrested for driving under the influence of alcohol and booked into jail. The clothes he was wearing at the time of his arrest were placed in a bag labeled with his name and placed in a locked closet. Three days later, the police recovered the body of Maldonado, propped against a tree less than a block from the bar. Maldonado had not been seen since he left the bar on the evening of July 21. An autopsy revealed that Maldonado’s death was caused by a single stab wound to the heart. When his body was found, Maldonado was wearing the clothes he had been wearing when he argued with Barrera at the bar.

The investigating officers obtained Barrera’s consent to search his home and car. The investigators found two identical knives, one under Barrera’s bed and one in the trunk of his car. The pathologist testified that the knives were consistent in dimensions with the stab wound which killed Maldonado. Without Barrera’s consent and without a warrant, investigating officers retrieved Barrera’s clothes from the jail lock-up and submitted them to the state crime lab for examination. A forensic serologist from the crime lab conclusively identified blood found on Barrera’s clothes as belonging to Maldonado. Barrera agreed to take a polygraph test and stipulated to the admissibility of the results. The examiner testified that Barrera gave deceptive answers to questions about Maldonado’s death. An acquaintance of Barrera’s testified that, after his arrest and before the police searched his residence, Barrera asked him to remove several items, including a wallet, from his residence and safeguard them for him. The wallet belonged to Maldonado.

1. Barrera contends the trial court erred in denying his motion to suppress the results of the tests conducted on the clothing he was wearing at the time of his arrest. Barrera contends that, as a pretrial detainee, he had a legitimate, albeit diminished, expectation of privacy in his clothing while it was being stored in a jail locker, citing State v. Henderson, 271 Ga. 264 (517 SE2d 61) (1999).

The Court has repeatedly held, however, that, once a person is lawfully arrested and in custody, the effects in his possession may later be seized and searched without a warrant. Batton v. State, 260 Ga. 127, 129-130 (3) (391 SE2d 914) (1990) (victim’s blood found on arrestee’s clothing); Williams v. State, 258 Ga. 80-81 (2) (365 SE2d 408) (1988) (jewelry later identified as belonging to the murder victim); Eberhart v. State, 257 Ga. 600, 602 (2) (361 SE2d 821) (1987) (blood and fiber evidence found on arrestee’s clothing). See United States v. Edwards, 415 U. S. 800 (94 SC 1234, 39 LE2d 771) (1974).

Our analysis is not changed by the fact that Barrera was arrested on one charge, that is, driving under the influence of alcohol, but the police seized his clothes as part of their investigation of an unrelated crime, that is, the homicide of Maldonado. As observed by the Court of Appeals of Texas,

The expectation of one arrested is that one’s clothing will be taken away when one assumes jail garb. . . . [I]t is difficult to conceive of an argument why society would distinguish between expectations of privacy in clothing of inmates based on the offense for which that clothing was tested. As with so many matters pertaining to being confined to jail, there simply is no reasonable expectation of privacy in the clothing taken from a prisoner.

Oles v. State, 965 SW2d 641, 644 (Tex. App. 1998). Because Barrera, once he was lawfully arrested for DUI, had no reasonable expectation that his clothing would not be seized and tested for evidence of a crime, the trial court did not err in denying his motion to suppress. Carter v. State, 224 Ga. App. 367, 368 (480 SE2d 376) (1997); Loden v. State, 199 Ga. App. 683, 687-688 (2) (406 SE2d 103) (1991).

2. Barrera contends the evidence was insufficient to convict him of voluntary manslaughter in that there was no evidence he caused Maldonado’s death solely as a result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person, as required by OCGA § 16-5-2 (a). Citing Lewandowski v. State, 267 Ga. 831 (483 SE2d 582) (1997), Barrera argues: “The evidence did not show that appellant acted out of passion resulting from provocation sufficient to excite such passion in a reasonable person. . . . It is of no moment whether the provocation (if any existed in this case), was sufficient to excite the deadly passion in a particular defendant.” (Emphasis in original.)

This argument is without merit. In Lewandowski, the Supreme Court upheld the exclusion of expert testimony regarding a psychological evaluation of a defendant who asserted the defense of provocation to a murder charge. The Supreme Court held that whether the provocation was sufficient to excite the deadly passion in the particular defendant was irrelevant and inadmissible to the factfinder’s determination of whether the provocation would have excited a deadly passion in a “reasonable person.” 267 Ga. at 832 (2). Lewandowski certainly cannot be read to require the State to offer separate evidence that the provocation was sufficient to excite deadly passion in a reasonable person; “[t]he sufficiency of the provocation was an issue for the [factfinder] to determine.” (Footnote omitted.) Williams v. State, 245 Ga. App. 670, 671 (1) (538 SE2d 544) (2000).

Decided June 26, 2001

Reconsideration denied July 16, 2001

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

Review of the transcript as summarized above reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Barrera was guilty of voluntary manslaughter. Johnson v. State, 236 Ga. App. 61, 63-64 (1) (510 SE2d 918) (1999); Nelson v. State, 213 Ga. App. 641, 642 (1) (445 SE2d 543) (1994); Mason v. State, 199 Ga. App. 691, 692-693 (1) (405 SE2d 747) (1991).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

        Stone v. State, 248 Ga. App. 190 (546 SE2d 787) (2001).

       In Henderson, the Supreme Court of Georgia held that a valid search warrant is required before “representatives of the prosecution” may search the cell of a pretrial detainee “solely for the purpose of uncovering incriminating evidence which could be used against the detainee at trial, rather than out of concern for [a] legitimate prison objective! ],” 271 Ga. at 267 (3), such as “ensuring the safety of prison staffs, administrative personnel, visitors and inmates; the exclusion of drugs and contraband from prison premises; the detection of escape plots; and the maintenance of a sanitary environment.” Id. at 265 (1) (citing Hudson v. Palmer, 468 U. S. 517, 526-527 (104 SC 3194, 82 LE2d 393) (1984)).

       In Edwards, the United States Supreme Court held:
      once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.
      415 U. S. at 807.


author: Blackburn, Chief Judge. Pope, Presiding Judge,

text:
    A01A0052.
    SMITH v. THE STATE.
    (552 SE2d 528)
   Blackburn, Chief Judge.

Following a jury trial, Danny Smith, Sr. appeals his convictions for driving under the influence to the extent that he was less safe, driving with an unlawful blood alcohol concentration, and speeding. Smith now argues that: (1) his convictions for DUI must be reversed because the State failed to accommodate his request for an independent blood test and (2) his conviction for speeding must be reversed because the trial court erred by admitting the readout of a radar gun without establishment of the proper foundation for such evidence. For the reasons set forth below, we affirm Smith’s conviction for speeding, and we reverse Smith’s convictions for DUI less safe and driving with an unlawful blood alcohol concentration.

Viewing the evidence in the light most favorable to the verdict, the record shows that Smith was stopped for speeding by Sergeant David Knight at 12:53 a.m. on September 26, 1998. Smith passed by Knight’s motorcycle, and Knight immediately detected, by visual estimation, that Smith was traveling in excess of the 35-mph speed limit. A radar gun reading made at that point indicated that Smith was going 78 mph. Knight turned his motorcycle around and pursued Smith, and, during this pursuit, Knight, using his own speedometer, paced Smith at speeds exceeding 55 mph.

After Smith was finally stopped, Knight asked him to step out of his truck. At the scene, Knight requested that Smith assent to an Intoxilyzer 5000 breath test at the station, and he read the Georgia implied consent notice to Smith. After consenting to the State test, Smith stated that he wanted an independent blood test in addition to the State test. Knight subsequently informed Smith that the test would be his responsibility — that he would have to choose who would perform the test and pay for its cost.

Following his arrest, Smith was taken to the police station, where he submitted to the State’s breath test at 1:42 a.m. The results showed that Smith’s blood alcohol level was between 0.198 and 0.207. After the State test was administered, Smith posted bond and was released at approximately 3:00 a.m. His request for an independent blood test was never accommodated.

1. Smith argues that his convictions for DUI must be reversed, contending that the results of his Intoxilyzer 5000 test should have been suppressed due to the State’s failure to accommodate his request for an independent blood test. We agree.

OCGA § 40-6-392 (a) (3) provides that a person who undergoes a chemical test at the request of a law enforcement officer is entitled to have a qualified person of his own choosing administer an additional test. In general, law enforcement officers have a corresponding duty not to refuse or fail to allow an accused to exercise the right to have an independent test. And, if an individual who requests such a test is prevented from receiving it by the State, the results of the State-administered test cannot be used as evidence unless the failure to obtain the test is justified. State v. Button; see OCGA § 40-6-392 (a) (3).

OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. The statute also states that the justifiable failure or inability to obtain an additional test shall not preelude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.

(Citations and punctuation omitted.) State v. Vandervoort.

In this case, it is undisputed that Smith requested an independent blood test after he assented to take the State’s breath test. As such, the State had a duty to comply with Smith’s request unless justified in not doing so. The record, however, does not reveal any grounds for such justification. Knight testified that he did not comply with Smith’s request because he expected him to bond out of jail and go get his own test. However,

[t]here is no requirement under the law that a suspect bond out before being entitled to an independent test. The only requirement is that the suspect first agree to take a state-administered test or the independent test is waived. And if the suspect does agree to the state-administered test, then the police officer must make “ ‘a reasonable effort to accommodate the accused who seeks an independent test.’ (Cit.)” State v. Button, [supra at 674]. See State v. Brodie; State v. Vandervoort, [supra at 73 (1)]. Obtaining bond is not a prerequisite to that reasonable accommodation.

State v. Terry.

Therefore, because the State has failed to show an appropriate justification for its failure to accommodate Smith’s request for an independent test, the results of the State Intoxilyzer 5000 test should have been suppressed, and Smith’s conviction for driving with an unlawful blood alcohol concentration must be reversed.

Concomitantly, Smith’s conviction for driving under the influence to the extent that he was less safe must also be reversed because the introduction of the Intoxilyzer readout must be considered harmful. “The test for harmful error is whether it is “highly probable’ that the error contributed to the judgment.” Head v. State. In this case, it is highly probable that the evidence that Smith’s blood alcohol level was above the legal limit contributed to the jury’s determination that he was less safe to drive at the time that he was stopped. See, e.g., Richards v. State.

The dissent argues that, because Smith bonded out of jail with 40 minutes left to get a blood test, “[a]ny failure of the police to accommodate the request while Smith was still in custody did not cause Smith’s failure to get the test and . . . was harmless.” The dissent further states that this “case might be different if Smith had shown that he was unable to obtain a test in the remaining time despite diligent attempts to do so.”

This reasoning is problematic for several reasons. First, it inappropriately shifts the burden to the defendant to show a lack of accommodation of his request. That is not the proper burden of proof in these cases. Pursuant to OCGA § 40-6-392 (a) (3), the State has an affirmative duty to accommodate a request for an independent blood test. The burden is on the State to accommodate this right and to justify any failure to do so. The justification for a lack of accommodation must be proven by the State, not the defendant. Raw speculation that the officer thought the defendant was going to be released on bond does not justify the State’s failure to meet its statutory obligation.

In cases such as this one, the defendant’s ultimate release on bond does not justify the State’s failure to accommodate defendant’s request for an independent test at the time he was entitled to it, after he had taken the State’s test and requested same. In turn, justification exists only if the State had a reasonable basis under the totality of the circumstances for failing to meet its statutory obligation. Under the dissent’s argument, the State could always circumvent the rights of defendants by simply bonding them out in less than three hours, whether or not the defendant was still drunk or his car had been impounded. Protective rights of defendants and the corresponding duty on the State were not intended to be avoided based on the speculation of police officers, not factually supported by the record.

Second, the dissent’s reasoning infuses considerable uncertainty into the interpretation of OCGA § 40-6-392 (a) (3), thereby undermining both its purpose and application. In this case, the dissent concludes, without any supporting evidence, that 40 minutes was enough time for Smith to have his blood test performed. There is, however, no evidence in the record showing that 40 minutes, in fact, would have been enough time. As such, the State failed to carry its burden of establishing that its failure to meet its obligation to accommodate Smith’s request was justified.

Moreover, the analysis employed by the dissent begs the question: How much time is enough? Forty minutes? Thirty-nine minutes? Thirty-eight minutes? Who has the burden of proof? What evidence must be shown to justify the State’s unquestioned failure to accommodate a defendant’s request? Distance from the jail to the facility of choice? Traffic patterns from the applicable time and date? The speed of admission of patients to the testing facility? Was the defendant’s vehicle impounded? Was the defendant still drunk at the time of his release? Could the defendant have legally driven at that time? Would the defendant have been guilty of DUI had he driven immediately after being released on bail? Did the defendant have transportation to get to the hospital?

Under the dissent’s analysis, what was once a simple means of protecting a defendant’s rights in a straightforward manner becomes a convoluted parade of uncertainties based on temporal circumstance. The language of the statute establishes the burdens in this regard, and this court should not attempt to excuse the State for its failure to meet its obligation. At the time the officer failed to meet the State’s obligation to provide Smith with an independent test, he did not know that Smith was going to be released on bail. Neither does the record reflect that he considered all of the other factors outlined above. Therefore, a review of the totality of the circumstances reveals that the officer failed to provide Smith with the independent test to which he was entitled, on his sheer speculation that Smith would bond out in time to obtain an independent test. The relevant statute clearly contemplates that the defendant is in relatively the same state of intoxication at the time of his independent test as he was at the time of the State’s test. If this were not the case, there would be no value to having an independent test, as its only purpose is to disprove the State’s contentions. It does not seem reasonable that the legislature would have intended for OCGA § 40-6-392 (a) (3) to be interpreted as the dissent contends it should be.

2. Smith contends that his conviction for speeding must be reversed, arguing that the trial court improperly admitted testimony without the proper foundation regarding the readout of a radar gun used to track his speed.

Pretermitting the efficacy of Smith’s argument, the admission of the radar gun results would be harmless in this case. Sergeant Knight testified that, by his visual estimation, Smith was traveling at a rate in excess of the speed limit, and, once he began following Smith, Knight verified this fact by clocking him with the speedometer on his motorcycle. Therefore, the results of the radar gun readout were cumulative, and, even if its admission was erroneous, it would not require reversal of Smith’s conviction for speeding. Taylor v. State.

Judgment affirmed in part and reversed in part.

Andrews, P. J, Johnson, P. J., Eldridge, Miller and Mikell, JJ., concur. Pope, P. J., concurs in part and dissents in part.

Pope, Presiding Judge,

concurring in part and dissenting in part.

I fully concur with Division 2 of the majority opinion but dissent to Division 1.

It is true that after a defendant requests an independent chemical test of his blood the police officer must make “ ‘a reasonable effort to accommodate the accused who seeks an independent test.’ [Cit.]” State v. Button, 206 Ga. App. 673, 674 (426 SE2d 194) (1992). And it is also the law that the officer may not mislead the defendant by stating or implying that bonding out of jail is a prerequisite to the independent blood test. State v. Terry, 236 Ga. App. 248 (511 SE2d 608) (1999). But if the defendant is released from his arrest with sufficient time remaining to obtain such a test, there can be no harm as a matter of law from such a statement.

In this case, Smith was stopped for speeding at about 12:53 a.m. After failing the field sobriety tests and the alco-sensor test, Smith was arrested and read his implied consent rights. Smith agreed to take the state-administered breath test and then stated that he also wanted a blood test. At the station, Smith finished the breath test on the Intoxilyzer 5000 at 1:42 a.m. Smith bonded out of jail at about 3:00 a.m. and was picked up by family members. Therefore, Smith had approximately 40 or more minutes left to get an independent blood test that would be relevant to the allegations against him. See OCGA § 40-6-391 (a) (5) (person shall not drive a moving vehicle while “[t]he person’s alcohol concentration is 0.10 grams or more at any time within three hours after such driving. . . .”). The case might be different if Smith had shown that he was unable to obtain a test in the remaining time despite diligent attempts to do so. But there is no such evidence in this case.

Smith had been properly instructed that he could get such a test and that it would be up to him to select someone to perform the test and pay for it himself. If he still wanted to have the test done, he had 40 minutes to do it after he left the jail. Any failure of the police to accommodate the request while Smith was still in custody did not cause Smith’s failure to get the test, and therefore, it was harmless. This distinguishes Terry. In that case, the defendant chose not to take the state-administered test in part, possibly, because she had been misled about whether bonding out of jail was a prerequisite to an independent test. The misinformation affected her choice. Here, the misinformation, if any, did not affect Smith’s choice — he wanted an independent test, and it did not affect whether he could get one — he had over forty minutes to do so.

Decided July 16, 2001.

Gregory W. Holt, Laurens C. Lee, for appellant.

A. Robert Tawse, Jr., Solicitor-General, Arthur J. Creque, Assistant Solicitor-General, for appellee.

This outcome does not depend on shifting the burden from the State to show reasonable accommodation of the defendant’s request — the State failed to meet that burden. But, during the three-hour period in question, the defendant was in police custody for part of the time and in his own custody for the rest. While he was in police custody, the police had a duty to accommodate his request. While he was in his own custody, he was free to decide whether he wanted to take the test, and the police obviously had no control over him. And, ultimately, it is not the officer’s duty to insure that the independent test is taken. Thornhill v. State, 202 Ga. App. 826 (415 SE2d 473) (1992). The time that the defendant is free to do as he chooses cannot be ignored. And, the State surely should not have the burden of showing that the defendant did not diligently seek his own blood test after he was released. Otherwise, a defendant who bonds out of jail with plenty of time to obtain his own test but who changes his mind and chooses to skip the test and go home could nevertheless prevent introduction of the State’s blood alcohol test if an officer failed to reasonably accommodate his request for an independent test while he was in police custody.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5) provides that a person shall not drive a moving vehicle while “[t]he person’s alcohol concentration is 0.10 grams or more at any time within three hours after such driving.”

       Smith was also convicted for committing an open container violation and reckless driving. He does not appeal these convictions.

        State v. Button, 206 Ga. App. 673, 674 (426 SE2d 194) (1992).

        State v. Vandervoort, 215 Ga. App. 72-73 (1) (449 SE2d 617) (1994).

        State v. Brodie, 216 Ga. App. 198, 199-200 (2) (453 SE2d 786) (1995).

        State v. Terry, 236 Ga. App. 248, 250 (511 SE2d 608) (1999).

        Head v. State, 220 Ga. App. 281, 283 (3) (469 SE2d 406) (1996).

        Richards v. State, 269 Ga. 483 (500 SE2d 581) (1998).

        Taylor v. State, 205 Ga. App. 84 (1) (421 SE2d 104) (1992).

       “Colloquy among counsel and the court, although included in the record, is not sufficient to make a proper record of facts before this court for purposes of satisfying appellant’s burden.” Banks v. State, 230 Ga. App. 881, 883 (3) (a) (497 SE2d 821) (1998).


author: Blackburn, Chief Judge.

text:
    A01A0341.
    CITY OF COLUMBUS v. BARNGROVER et al.
    (552 SE2d 536)
   Blackburn, Chief Judge.

In this case for continuing nuisance, trespass, and inverse condemnation resulting from a system of improperly maintained water and sewage drainage pipes, the City of Columbus appeals the jury’s award of damages and an injunction to Dr. Kenneth Barngrover, contending that the trial court erred by: (1) entering judgment on a verdict unsupported by sufficient evidence; (2) denying the City’s motion for directed verdict; (3) issuing an injunction contrary to the jury verdict and out of term; (4) failing to bar claims based upon sanitary sewage contamination because appellees did not provide appropriate ante litem notice to the City; and (5) giving or failing to give numerous jury charges.

1. The City contends that the evidence was insufficient to support the verdict, arguing that: (a) it had no duty to maintain the drainage system; (b) the Bamgrovers owed a servitude to all landowners at a higher elevation to accept free flowing water; and (c) deeds and plats in the record release the City from liability. We disagree.

Where a jury returns a verdict and it has the approval of the trial judge, we construe the evidence with every inference and presumption in favor of upholding the verdict and do so even if the evidence is in conflict. Light v. Mason.

Viewed in this light, the evidence shows that, on July 27, 1991, Dr. Barngrover and his wife, Marla, purchased a home at 3301 Cathryn Drive in Columbus. The Bamgrovers’ house sits on a multiacre site at the bottom of a hill that runs the length of Cathryn Drive. Storm water from both Cathryn Drive and other streets in the northeast corner of the subdivision flows into roadside catch basins and is channeled under the Bamgrovers’ property through a system of storm water and sewage pipes. In addition, a number of grates located on the Bamgrovers’ property drain storm water into the sewage system. The storm water is finally routed to a manhole located under the Bamgrovers’ house, where it is then directed away from the property.

In June 1991, the Bamgrovers moved into the main house at 3301 Cathryn Drive and rented the guest house to the seller, Caroline Layfield. At that time, the Bamgrovers noticed various inlets and drain covers on the property, but were unaware of the system of drainage and sewage pipes that channeled water under the residence and did not know about the manhole located under the home.

On July 2, 1991, the Bamgrovers discovered a sinkhole on the property near the carport. As the City had previously repaired sinkholes on the property, Layfield called the City which, in turn, sent workers to excavate the site of the cave-in. On November 23, 1992, however, a large sinkhole recurred next to the carport, and, once again, the City was called to the property to perform repairs. Richard McKee, the City’s Director of Public Services, inspected the sinkhole and observed water rushing into the hole from the underground drainage system. McKee then directed a City crew to fill the hole with dirt.

This remedy proved to be only a temporary and incomplete fix, however, as the Barngrovers presented evidence of damage to the main residence from the November cave-in, including settlement of the carport foundation at the site of the sinkhole and a crack in the carport wall. Moreover, Dr. Bamgrover filled the large sinkhole a number of times, but drainage washed the fill away. And, exacerbating the situation, additional small sinkholes developed on the property after the November incident.

On January 29, 1993, Dr. Bamgrover sent a letter to the City demanding that it repair the damage or he would file suit. McKee responded on December 3, 1992, acknowledging the failure of the “drainage system” and the resulting damage to the property and carport as a result of “cave-ins.” McKee wrote: “[W]e are working in coordination with the water works to ascertain the full extent of the problem.” McKee promised “immediate” action to correct the cave-ins. Despite McKee’s assurances, however, the City has consistently refused to make any repairs to the property since 1992. Accordingly, on February 22, 1993, the Bamgrovers filed suit for nuisance, trespass, and inverse condemnation resulting from the malfunctioning drainage system.

Sometime after filing suit, the Barngrovers began to notice a strange smell coming from their property and decided to retain an environmental consultant to test for contaminants. The consultant found high levels of fecal coliform bacteria and opined that the sanitary sewer system was broken, causing cross-contamination of storm and sanitary waters on the property. Because of this contamination, the consultant advised the Barngrovers that their home was uninhabitable, and the family moved away in September 1993.

After the ensuing trial, the jury found in favor of Barngrover on August 4, 1999, and awarded him $237,000 for attorney fees, out-of-pocket expenses, and loss of enjoyment of his property.

(a) The City argues that the evidence was insufficient to show that it constructed, owned, accepted title to, or otherwise had a duty to maintain the drainage system. It is, however, well established that “where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.” Hibbs v. City of Riverdale. See Columbia County v. Doolittle; DeKalb County v. Orwig; Martin v. City of Fort Valley; Ingram v. Baldwin County. Accordingly, it is not necessary for the City to have actually constructed the drainage system if it undertook to maintain it. Neither is it necessary for the City to own the land or hold title to the drainage system. “While ownership of property generally may give rise to a nuisance when property is used to cause harm to others, such ownership is not an essential element of the cause of action for nuisance.” Fielder v. Rice Constr. Co. Rather, the exercise of dominion or control over the property causing the harm is sufficient to establish nuisance liability. Hibbs, 267 Ga. at 339. See Fulton County v. Wheaton, overruled on other grounds, Orwig, supra; Fielder, supra at 365-366.

Here, the record shows that the City undertook to maintain the drainage system. Director McKee acknowledged that the drainage system under the Barngrovers’ property carried water channeled from City streets, was part of the City system, and that the City accepted responsibility for maintaining the system. Additional evidence showed that the City treated the drainage system as City property and routinely accessed and repaired the lines with City funds despite the fact that they were located under private property. Former owner Brent Buck testified that the City came to the property four or five times at his request to fill sinkholes, help with erosion problems, or improve the flow of the sewers. Moreover, Charlie Veasley, Assistant Chief of Rainwater Management for the City of Columbus, testified that, at the City’s direction, he maintained a portion of the drainage system extending under 3301 Cathryn Drive for over 30 years.

Based on this evidence, the jury had sufficient grounds to conclude that the City exercised dominion and control over the drainage system so as to give rise to a duty to maintain it. Cf. City of Lawrenceville v. Macko (finding “no evidence” that the City exercised any control over the drainage system).

(b) The City further contends that it was entitled to a directed verdict because the Barngrovers owed the City, as the higher, adjoining property owner, a servitude to accept the flow of surface water across their land. This rule of common law cited by the City, however, applies only when the higher, adjoining property owner does not increase the flow of water by artificial means. Brown v. Tomlinson. Here, even if the City did not initially construct it, the City actively maintains a drainage system that concentrates water from City streets and channels it under the Barngrovers’ property. For this reason alone, the City’s argument must fail. Moreover, a competing principle of law applies to the facts of this case that prohibits the City from constructing or maintaining a drainage system that repeatedly floods and damages private property so as to constitute a continuing nuisance. See Hibbs, 267 Ga. at 338.

(c) Next, the City vaguely contends that “the deeds and plats in evidence” bind the Barngrovers and release the City from liability. We cannot determine from this general statement the basis of the City’s argument. The City violates Court of Appeals Rule 27 (c) by failing to cite to facts in the record in support of this argument. Therefore, we consider it abandoned. See Contract Harvesters v. Meade Coated Bd.

2. The City contends that the trial court erred by failing to enter a directed verdict in its favor on appellees’ nuisance claim.

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.

Driggers v. Campbell.

As the evidence in this case was sufficient to support the verdict against the City, the trial court did not err in denying the City’s motion for directed verdict.

3. The City contends that, after entering judgment on September 1, 1999, the trial court improperly amended that order on December 1, 1999, therein outlining specific steps that the City must take to abate the continuing nuisance on the Barngrovers’ property. Specifically, the City argues that the latter order was (a) entered out of term and (b) exceeds the scope of the jury verdict by expanding the injunction beyond the findings of the jury to include the abatement of unspecified nuisances, namely, contamination from sanitary sewage.

The record shows that the jury returned its verdict on August 4, 1999, which reads as follows:

We find for the plaintiff. We award $237,000 compensation for attorney fees, out of pocket expenses and loss of enjoyment of the property. We direct that the City abate the drainage system away from the house. We also direct that the City repair the house to its 1991 condition. Specifically, they will repair any damage caused in abating the drainage system, any walls, foundation or other structural defects associated with the sinkholes and/or repair/replacement of drainage system. This must be accomplished within 6 months from this date.

On September 1, 1999, the trial court entered its judgment, setting forth verbatim the language of the verdict and ordering the abatement of “all nuisances created, maintained and in existence” on the Barngrovers’ property. With the agreement of both sides, the trial court expressly retained jurisdiction over the equitable portion of the judgment.

Then, on September 9, 1999, at the City’s request, the court “clarified” that the compensatory and injunctive relief awarded by the jury was limited “by the language of the jury verdict” and that abatement of the nuisances was limited to those nuisances specifically identified by the jury. In response, on September 24, 1999, the City submitted an abatement plan.

On December 1, 1999, however, the trial court entered an order rejecting the City’s abatement plan and setting forth in detail the required abatement work, including measures to remove and reroute the drainage system (both sanitary and storm water), remove and test contaminated soil, repair the Bamgrovers’ home and property to its 1991 condition, and rebuild all affected structures.

(a) The City contends that the trial court’s December 1, 1999 order was improperly entered outside the applicable term of court.

In general, OCGA § 9-12-9 requires that judgments and executions issued by a court must conform to the verdict. However, in proper cases, our superior courts may mold the verdict “so as to do full justice to the parties” and mold their decrees “so as to meet the exigencies of each case.” OCGA §§ 9-12-5; 23-4-31. However, this “molding” authority is not without limits. “[A]fter the expiration of the term at which a decree was entered!,] it is [beyond] the power of the court to modify and revise it in any matter of substance or in any manner affecting the merits.” Long v. Long.

Here, the trial court’s December 1, 1999 order does not modify the decree in any matter of substance not contemplated by the parties at the time the decree was entered. The original verdict and order require the City to “repair the house to its 1991 condition.” To achieve this goal, the City would necessarily have to remedy the fecal coliform contamination caused by the malfunctioning pipes on the property. As such, the trial court’s inclusion of this directive in the December 1, 1999 order neither modified nor revised its previous decree in a way which altered the merits of this action.

(b) The City also contends that the trial court’s December 1,1999 order exceeded the scope of the jury’s verdict. However, “[t]he court may construe a verdict, which is not explicit in its terms, in the light of the pleadings, the issues made by the evidence, and the charge.” (Punctuation omitted.) Brown v. Techdata Corp. Thus, “[a]fter the jury return[s] a general verdict finding a nuisance existed, the trial court was authorized under [OCGA § 23-4-31] to mold its decree so as to meet the exigencies of the case and the prayers of the plaintiffs.” City of Cordele v. Hobby. See Brown, 238 Ga. at 629.

Again, the verdict requires the City to “abate the drainage system away from the house” and to “repair the house to its 1991 condition.” The Barngrovers presented evidence of damage to their home and property from both storm water and sanitary sewage. The court found the City’s abatement plan to be deficient and, in doing so, based upon the evidence presented at trial, molded its decree in order to provide the City with detailed directions on how to abate the nuisance. It was within the trial court’s authority under OCGA § 23-4-31 to mold its injunction to meet the exigencies of the case. There was no error.

4. The City next contends that the Barngrovers failed to provide sufficient ante litem notice of its claims regarding contamination of their property from sanitary sewage leaking from the drainage system. We disagree.

Under Georgia law, claimants must present ante litem notice of their claims to municipalities and county governments. See OCGA §§ 36-33-5 (municipalities); 36-11-1 (county governments). The notice requirements imposed by OCGA §§ 36-33-5 and 36-11-1 allow governments the opportunity to investigate potential claims, ascertain the evidence, and avoid unnecessary litigation. Burton v. DeKalb County. Substantial compliance is all that is required to meet the statutory notice requirements. Id. See City of Atlanta v. Frank, overruled on other grounds, City of Atlanta v. Black.

For purposes of ante litem notice, the City in this case must be treated as a county. In Bowen v. Columbus, Ga., our Supreme Court briefly discussed the consolidation of the governments of the City and Muscogee County. See also Troup County Elec. Membership Corp. v. Ga. Power Co. (reviewing in detail the consolidation of the City of Columbus and Muscogee County). The Court pointed out that the City was abolished by the legislature when the consolidated government was created. Bowen, supra at 463. The City’s charter was amended by the legislature in 1983 to read: “ '8-202. Tort Liability. The tort liability, expressly including liability based on a theory of nuisance, of the consolidated government shall be the tort liability applicable to counties.’ ” Id. at 462 (citing Ga. L. 1983, p. 4493). In Bowen, the Supreme Court found the amendment to be constitutional and extended county immunity to the City of Columbus. Id. at 464 (5).

Accordingly, OCGA § 36-11-1 applies to this case. And, this statute provides that “[a] 11 claims against counties must be presented within 12 months after they accrue or become payable or the same are barred.”

On January 29, 1993, the Barngrovers sent ante litem notice to the City alleging damages as a result of the continuing nuisance that the City maintained on their property. The notice identified the nature of the damage (erosion, sinkholes, damage to improvements), the location of the damage (3301 Cathryn Drive), the cause (the City’s failure to maintain the “drainage system,” which included interconnected sanitary sewage and water pipes), and nature of the potential cause of action (nuisance). The Barngrovers were not required to identify the precise nature of the effluent causing the property damage (i.e., sanitary sewage). The City was on notice and could have investigated, as the Barngrovers did, to determine the nature of the contamination. We find that the Barngrovers substantially complied with the statutory ante litem requirements. There was no error.

5. The City claims that the trial court erred by giving or failing to give certain jury charges.

(a) The City argues that the trial court improperly expressed its opinion as to the evidence, in violation of OCGA § 9-10-7, because it gave a charge to the jury consisting of a synopsis of the Barngrovers’ contentions as plaintiffs.

OCGA § 9-10-7 provides, in part: “It is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved.” The charge must be viewed as a whole to determine whether the trial court violated OCGA § 9-10-7. See Cox v. Gen. Motors Corp.

Here, the court prefaced its reading of the contested charge with a clear statement that it was about to discuss the “plaintiffs’ contentions.” Along with its general instructions to the jury at the close of the trial, the court cautioned the jury “not [to] be influenced by anything that I’ve done or said or any actions that I may or may not have taken, or any movement, or any laughter, or any comment that I might have made.” In addition, the court instructed the jury before the start of the trial that it was “not appropriate for the Court to comment on any evidence to the extent that it might get you to make up your minds” and that “[i]t’s not proper for me to inject my opinion into this.” Finally, the court explained twice — once before and once after the presentation of evidence — that the Barngrovers, as plaintiffs, carried the burden of proving their case. In the context of the entire charge, we conclude that the synopsis of the Barngrovers’ contentions did not constitute an improper opinion given by the court upon the evidence. See Hathaway v. Bishop.

(b) Next, the City claims that the trial court erred by charging the jury that the City attorney, as the City’s agent, binds the City through his conduct. The City admits that it is bound by the acts of the City attorney, but “only if he is authorized to do something.” The City cites OCGA § 45-6-5 and City of Atlanta v. Black, supra, as support, arguing that the powers of City officials are limited to those defined and conferred by law. While the City’s reading of the law is correct, the City fails to point to a specific limitation on the City attorney’s authority that would have required a different charge under the facts and theories of this case. Cf. Hibbs v. City of Riverdale (record was clear that public works director was required to leave any decisions regarding the property to the City manager and council). Consequently, we find no error.

(c) The City further claims that the trial court improperly charged the jury on the law of damages, contending that its liability is governed by the law of nuisance as it applies to counties and therefore only inverse condemnation damages are available.

While this conclusion is correct, see Orwig, supra at 138, any error concerning the damage charge was waived. “An appellant’s voluntary payment of the judgment renders moot the issues sought to be determined on appeal.” Nash v. Pierce. Here, the City voluntarily paid the judgment. On October 15,1999, the City tendered a check in the amount of $240,634.30 to the Barngrovers in satisfaction of the damages award. This amount was later paid into the trial court’s registry and distributed. There are no facts of record which would indicate that this payment was involuntary. Therefore, the issue is moot, and the City cannot complain about an improper damages charge. See OCGA § 5-6-48 (b) (3).

(d) The City claims the trial court erred by giving a number of charges concerning municipal responsibility for the maintenance of drainage systems. In its argument, however, the City, without addressing a specific charge, asserts one ground in favor of reversal: In an action based on negligence alone, a municipality may not be held liable for failing to maintain a drainage system because such maintenance pertains to its governmental as opposed to ministerial functions. This argument is without merit for a number of reasons.

First, the Barngrovers did not seek to recover “based on negligence alone,” and the trial court did not instruct the jury under a negligence theory. Instead, this case turns on the City’s nuisance liability, which is to be distinguished from an action based upon negligence. Hibbs, 267 Ga. at 338. Next, the City’s liability is governed by nuisance law as it applies to counties, and county governments are required by our Constitution to compensate private landowners for damage to their property that amounts to a “taking.” Orwig, supra at 138. Finally, even if we treat the City as a municipality (as opposed to a county), it would not enjoy immunity based upon a determination that the maintenance of the drainage system relates to a governmental function. “While a municipality enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function, it may be liable for damages it cause [d] to a third party from the creation or maintenance of a nuisance.” Hibbs, 267 Ga. at 337. See City of Rome v. Turk. The trial court did not err.

(e) Also without merit is the City’s argument that the trial court erroneously instructed the jury concerning the law of easements. Contrary to the City’s contention, we find that there was evidence to support this charge.

(f) The City next claims that the trial court erred by failing to appropriately instruct the jury concerning an award of attorney fees under OCGA § 13-6-11 because the trial court did not track the language of the statute or otherwise appropriately explain the standard. For the same reasons stated in Division 5 (c), this error was waived by voluntary payment of the attorney fees award. See Nash, supra at 466 (1). Moreover, had the error been preserved, the trial court properly instructed the jury that it could award attorney fees if it found the City was stubbornly litigious.

The trial court instructed the jury as follows:

All right, ladies and gentlemen, on the issue of attorney’s fees. I’m going to let you decide about attorney’s fees. The law says that expenses of the litigation to include attorney’s fees are allowed to be awarded as damages in nuisance cases. You may award expenses for [litigation] if you find that the defendant has been stubbornly litigious. That is a question of fact for you to decide. Attorney’s fees can be recovered from a municipality.

In this case, the City was well aware of the problems for years and had performed repairs in the past. Notwithstanding the history involved, the City suddenly refused to repair the drainage system that it maintained, which resulted in additional damage to the Barngrover property. We find no error here.

(g) The City claims the trial court erred by refusing to charge the jury that governments may not be held liable for failure to abate nuisances on private property. This is an incorrect statement of the law. See Hibbs, 267 Ga. at 338. Therefore, we find no error.

(h) Citing Macko, supra, the City argues that the trial court erred by refusing to charge the jury that it may not be held liable for the negligent approval of building permits. In Macko, during our discussion of the plaintiff’s negligence claim, we determined that, under the “public duty doctrine,” the plaintiff failed to establish that it had a special relationship with the City different from that which the City enjoyed with the public in general. Id. at 315. Accordingly, under the facts of that case, the City did not owe the plaintiff a duty and therefore could not be held liable for negligent inspection of the property or for negligently issuing a building permit. Id. Here, the Barngrovers did not allege negligent approval of building permits, but rather made a nuisance claim. In that regard, the City clearly owed the Barngrovers a duty not to create a nuisance by failing to maintain the drainage system. See Hibbs, 267 Ga. at 338. The trial court did not err by refusing the City’s charges.

(i) The City argues that the trial court erred by refusing to give its charges containing the “ultra vires rule,” which the City claims was an essential defense. First, the City claims the trial court should have instructed: “I charge you that a contract that restricts the governmental or legislative functions of the Columbus council is beyond the power of any executive official to enter and is therefore a nullity and void and unenforceable even though a person dealing with the government official may be unaware of the fact.” However, there were no allegations of breach of contract in this case. Therefore, this charge is not relevant to the contentions of the parties and, as such, not adjusted to the facts of this case.

Next, the City claims that the trial court erroneously refused to charge: “I charge you that any commitment made by the defendant’s Director of Public Services to plaintiffs to assume responsibility for or accept any drainage system on plaintiffs’ property was void and has no binding effect on defendant without the specific authorization of the Columbus Council.” This enumeration parallels the argument that the City makes in Division 5 (b) above concerning the power of the City attorney to bind the City as its agent. The City’s argument here is similarly without merit. Namely, the City fails to argue any specific limitation on the director’s authority that requires a different charge under the facts and theories of this case. Moreover, to the extent that the director was not authorized to assume responsibility for the drainage system on behalf of the City, as he did, by virtue of his December 3, 1992 letter to the Barngrovers, there was substantial evidence establishing that the City had already assumed responsibility for the system based on its conduct over the years. The director’s letter was admissible as a confirmation of the City’s previous acceptance of responsibility for the system. Therefore, any error was harmless.

Decided July 16, 2001.

Eugene H. Polleys, Jr., for appellant.

Gary O. Bruce, James D. Patrick, Jr., for appellees.

(j) The City claims that the trial court erred by failing to instruct the jury that, under OCGA § 36-11-1, all claims against counties must be presented within 12 months after they accrue or the same are barred. The City argues, as it did in Division 4 above, that this statute of limitation bars recovery for sanitary sewage contamination or arising from a continuing nuisance. As explained in Division 4, the Barngrovers substantially complied with the ante litem notice requirements imposed by OCGA § 36-11-1. The Barngrovers provided notice to the City within 12 months of the November 23, 1992 blowout by virtue of its January 29, 1993 letter to Director McKee. Accordingly, the jury was authorized to award damages for any injury during the preceding 12 months, including any injury resulting from sanitary sewage contamination or arising from a continuing nuisance. The trial court did not err in this regard.

(k) Finally, we reject the City’s argument that the trial court erred by failing to inform the jury of the common law principle that a property owner owns downward and upward indefinitely. As explained in Division 1 (a), ownership of property is not the determinative factor to establish nuisance liability. Fielder, supra at 365-366. Therefore, the trial court did not err by refusing the City’s charge.

Judgment affirmed.

Pope, P. J., and Mikell, J, concur.

       We must point out that the City has failed to comply with Court of Appeals Rule 27 (c) (1), which requires that the sequence of argument in a brief follow the enumerations of error and be numbered accordingly. The City lumps several different enumerations together, without any clear indication as to how the argument relates to the various enumerations. Such failure makes it difficult to determine precisely what errors the City is asserting on appeal. Nevertheless, we will address the City’s enumerations of error to the extent that they are supported by argument in its brief. See Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 72 (532 SE2d 463) (2000).

        Light v. Mason, 225 Ga. App. 260 (1) (483 SE2d 685) (1997).

       Testimony at trial established that this section of the drainage system extending from the northeastern comer of the property was plugged in January 1994 (after the Bamgrovers moved from the property).

       A sanitary sewage trunk line runs under the Bamgrovers’ land to the north. Various sanitary sewage lines from houses on surrounding properties run through the Bamgrovers’ property and tie into this trunk line. Testimony at trial showed that a storm water grate located on the Bamgrovers’ property drained into the sanitary sewer system until the grate was plugged by the City in May 1992.

       The manhole where the storm drainage converges -is located under a kitchen/carport addition to the main residence built in 1987 by the previous owners of the property. It is undisputed that the City issued a permit for the construction of this addition. At trial, City officials claimed to have no knowledge of the manhole at the time the construction permit was issued because there was no map of record showing the manhole or any recorded easement relating to it or the drainage system. Similarly, there were no maps or plats of record showing the location or course of the drainage system. Instead, the City relied primarily on the knowledge of its field workers to ascertain the location of the lines in the Clubview Heights area.

       Layfield informed the Bamgrovers that the City repaired sinkholes on the property in the past and, if necessary, the Bamgrovers should call the City for repairs of this nature in the future. Several City work orders indicate that the City worked on sinkholes at 3301 Cathryn Drive prior to the date the Bamgrovers purchased the property.

       (Emphasis in original.) Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

        Columbia County v. Doolittle, 270 Ga. 490, 493 (3) (512 SE2d 236) (1999).

        DeKalb County v. Orwig, 261 Ga. 137, 138-139 (2) (402 SE2d 513) (1991).

        Martin v. City of Fort Valley, 235 Ga. App. 20 (508 SE2d 244) (1998).

        Ingram v. Baldwin County, 149 Ga. App. 422, 423 (254 SE2d 429) (1979).

        Fielder v. Rice Constr. Co., 239 Ga. App. 362, 365 (1) (522 SE2d 13) (1999).

        Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984).

        City of Lawrenceville v. Macko, 211 Ga. App. 312, 316 (3) (439 SE2d 95) (1993).

        Brown v. Tomlinson, 246 Ga. 513, 514 (272 SE2d 258) (1980).

       The evidence did not establish who constructed the drainage system.

        Contract Harvesters v. Meade Coated Bd., 239 Ga. App. 853, 857 (522 SE2d 260) (1999).

        Driggers v. Campbell, 247 Ga. App. 300, 302 (2) (543 SE2d 787) (2000).

       OCGA § 15-6-3 (8) fixes the terms of court for Muscogee County. In that regard, the September 1, 1999 judgment and September 9,1999 “clarification” were entered during the August term (August 2, 1999 through October 4, 1999). Similarly, the City filed its September 24, 1999 plans to implement the injunctive relief dining the August term. However, the court did not enter its order on such submission until December 1, 1999, during the October term of court.

        Long v. Long, 247 Ga. 624, 625 (278 SE2d 370) (1981).

        Brown v. Techdata Corp., 238 Ga. 622, 629 (234 SE2d 787) (1977).

        City of Cordele v. Hobby, 240 Ga. 207 (240 SE2d 16) (1977).

        Burton v. DeKalb County, 202 Ga. App. 676, 678 (415 SE2d 647) (1992).

        City of Atlanta v. Frank, 120 Ga. App. 273 (170 SE2d 265) (1969).

        City of Atlanta v. Black, 265 Ga. 425, 427 (457 SE2d 551) (1995).

        Bowen v. Columbus, Ga., 256 Ga. 462, 463 (1) (349 SE2d 740) (1986).

        Troup County Elec. Membership Corp. v. Ga. Power Co., 229 Ga. 348 (191 SE2d 33) (1972).

       The City does not contend that the letter was improperly addressed or that it was not received.

        Cox v. Gen. Motors Corp., 187 Ga. App. 176, 178 (369 SE2d 525) (1988).

        Hathaway v. Bishop, 214 Ga. App. 870 (1) (449 SE2d 318) (1994).

       OCGA § 45-6-5 provides: “Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.”

        Hibbs v. City of Riverdale, 227 Ga. App. 889, 890 (490 SE2d 436) (1997).

        Nash v. Pierce, 238 Ga. App. 466 (1) (519 SE2d 462) (1999).

       We note, however, that the other issues raised by the appeal relate to the injunctive relief and are therefore appropriate for review.

        City of Rome v. Turk, 235 Ga. 223 (219 SE2d 97) (1975).

       OCGÁ § 13-6-11 provides: “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”


author: Barnes, Judge. Smith, Presiding Judge,

text:
    A01A0369.
    DILLARD-WINECOFF, LLC v. IBF PARTICIPATING INCOME FUND et al.
    (552 SE2d 523)
   Barnes, Judge.

Dillard-Winecoff, LLC sued IBF Participating Income Fund and a number of related entities (collectively “Interbank”) for fraud, wrongful foreclosure, breach of fiduciary duty, and breach of contract in connection with a real estate acquisition loan. The trial court granted summary judgment to Interbank. Dillard-Winecoff appeals, and we reverse because the claims against Interbank are not precluded by judicial estoppel, res judicata, or collateral estoppel.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

On June 26, 1998, Interbank loaned Dillard-Winecoff $1.8 million to buy the Winecoff hotel in Atlanta. Dillard-Winecoff was subsequently unable to make the loan payments and filed a petition under Chapter 11 of the United States Bankruptcy Code on February 2, 1999. In its representation to the Bankruptcy Court of the Northern District of Georgia with respect to “contingent and unliquidated claims of every nature,” Dillard-Winecoff listed “none.”

On May 19, 1999, the bankruptcy court lifted the automatic stay because, among other reasons, Dillard-Winecoff had failed to timely file a plan of reorganization and had failed to establish means of paying its creditors. This allowed Interbank to proceed with a foreclosure on the hotel property in July 1999. On August 4, 1999, DillardWinecoff’s bankruptcy case was dismissed without objection.

On September 10, 1999, Dillard-Winecoff filed this action claiming that Interbank engaged in a fraudulent scheme to acquire the Winecoff hotel property. Dillard-Winecoff describes the scheme as a “lend to own” plan whereby Interbank made the acquisition loan for the hotel with the intention of causing Dillard-Winecoff to default on the loan and provide Interbank an opportunity to procure the property in a foreclosure. Interbank moved for summary judgment on the ground that judicial estoppel, res judicata, and collateral estoppel precluded Dillard-Winecoff’s action against it. The trial court granted Interbank’s motion, but did not explain which of these doctrines applied to bar Dillard-Winecoff’s claim.

1. Judicial estoppel is a federal doctrine that “ ‘precludes 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.’ [Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994).]” (Emphasis supplied.) Wolfork v. Tackett, 273 Ga. 328 (540 SE2d 611) (2001). It is “directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings.” (Citations and punctuation omitted.) Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996). See also Southmark Corp., supra, 212 Ga. App. at 455 (purpose of judicial estoppel is to prevent “intentional self-contradiction”). Thus, two prerequisites must be present for judicial estoppel to apply: (1) prior assertion of an inconsistent position in another judicial proceeding; and (2) successful assertion of the previous inconsistent position.

Dillard-Winecoff claims that judicial estoppel should not prevent it from pursuing this action because its bankruptcy petition was dismissed and that therefore its position with respect to contingent claims was not “successfully asserted” in the bankruptcy action.

2. The precise meaning of “successfully asserted” in the context of judicial estoppel has not been explicitly addressed by this Court or our Supreme Court. In Thaxton v. Norfolk Southern R. Co., 239 Ga. App. 18, 25 (2) (520 SE2d 735) (1999), we declined to apply judicial estoppel, in part, because the previous position was not “ ‘successful’ or ‘sustained by the court.’ ” In Smalls v. Walker, 243 Ga. App. 453, 456 (1) (532 SE2d 420) (2000), we refused to apply judicial estoppel, in part, because “judicial estoppel requires a showing that the plaintiff’s previous position was successfully asserted!, and the worker] was not successful in his workers’ compensation claim.” (Citation omitted.) Id. In other opinions, we implicitly analyzed the success requirement in terms of whether the debtor obtained an unfair advantage or benefit in the bankruptcy court. See, e.g., McBride v. Brown, 246 Ga. App. 149, 150 (538 SE2d 863) (2000); Johnson, supra, 223 Ga. App. at 651.

Federal courts, from whom we borrow the judicial estoppel doctrine, have found the success requirement to mean “that a party’s prior statement was actually accepted as true by a court or administrative agency. . . .” Comment: The Judiciary Says, You Can’t Have It Both Ways: Judicial Estoppel — A Doctrine Precluding Inconsistent Positions, 30 Loyola L.A. L. Rev. 323, 336 (1996). “The requirement that the position be successfully asserted means that the party must have been successful in getting the first court to accept the position. Absent judicial acceptance of the inconsistent position, [the] application of the rule is unwarranted because no risk of inconsistent results exists.” (Citations and footnote omitted.) Edwards v. Aetna Life Ins. Co., 690 F2d 595, 599 (6th Cir. 1982). See also S. J. Groves & Sons Co. v. Fulton County, 967 FSupp. 501 (N.D. Ga. 1996).

In order to clarify the meaning of “successfully asserted” for purposes of judicial estoppel, we hold, based on the above case law, that a party has “successfully asserted” a previous inconsistent position when the first court adopts or accepts a party’s previous inconsistent position in a manner that provides an unfair advantage or benefit to that party in the first proceeding.

Thus, we must determine whether the bankruptcy court adopted the prior inconsistent position of Dillard-Winecoif in a manner that benefitted it or provided an unfair advantage. In each of our previous cases applying judicial estoppel in the bankruptcy context, the bankruptcy court confirmed the debtor’s plan or discharged his or her debts. See Harper v. GMAC Mtg. Corp., 245 Ga. App. 729 (538 SE2d 816) (2000); Wolfork v. Tackett, 241 Ga. App. 633 (526 SE2d 436) (1999), aff’d, supra, 273 Ga. 328; Reagan v. Lynch, 241 Ga. App. 642 (524 SE2d 510) (1999); Byrd v. JRC Towne Lake, 225 Ga. App. 506 (484 SE2d 309) (1997); Hyre v. Denise, 214 Ga. App. 552 (449 SE2d 120) (1994); Southmark Corp., supra, 212 Ga. App. at 455. Thus, the. inconsistent position was adopted by the court, and the debtor obtained a benefit or unfair adyantage with regard to its creditors in the bankruptcy.

In this case, the record does not show that the bankruptcy court discharged Dillard-Winecoff’s debts or confirmed its plan before dismissing the bankruptcy action. As we recognized in Jowers v. Arthur, 245 Ga. App. 68, 71 (537 SE2d 200) (2000) (physical precedent), “ [dismissal effectively vacates a confirmed plan, returns the debtor and her creditors to the status quo ante, and revests the estate’s property in the debtor, with the debtor again liable for his debts and with the creditors free to pursue all legal remedies against the debtor.” Thus, while a debtor benefits from a discharge of his debts in a case in which the bankruptcy court has accepted his underreporting of assets, there is no benefit when the case is dismissed. Additionally, the bankruptcy court has not adopted or accepted the debtor’s inconsistent position. As a result, we cannot find that DillardWinecoff successfully asserted an inconsistent position in the bankruptcy court and apply judicial estoppel to bar its present claims.

3. This is the first case in which we refuse to apply judicial estoppel because only one of the factors required for its application, successful assertion, is absent. The fact that only one, instead of two or three, prerequisites is missing should not trigger the doctrine’s application. Likewise, simply because more than one factor has been absent in all of our previous cases does not mean that we require such a showing to avoid application of the doctrine. While a debtor’s attempt to remedy the omission in bankruptcy court will preclude the application of judicial estoppel, it does not and should not represent the only way to prevent application of the doctrine. Nor should it be characterized as an exception to the application of judicial estoppel. Instead, it is a fact that precludes application of the doctrine because prerequisites required for its application are absent.

4. Interbank claims that it was entitled to summary judgment because this action is res judicata to the previous bankruptcy action.

The doctrine of res judicata prevents re-litigation of matters that were or could have been litigated in a previously-adjudicated action. In order for res judicata to bar a subsequent action, it must be established that an identity of parties and subject matter exist between the two actions, and that a court of competent jurisdiction entered an adjudication in the earlier action.

(Citations omitted). Labovitz v. Hopkinson, 271 Ga. 330, 332 (2) (519 SE2d 672) (1999).

Interbank argues that Dillard-Winecoff could have asserted and litigated on the merits the claims it presents in this action in the prior bankruptcy proceedings. Interbank further claims that DillardWinecoff, having had the opportunity to fully and fairly litigate these issues, is precluded from raising them now. “[I]t is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense.” (Emphasis in original.) Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998).

We were presented with a similar issue in Moore v. Bank of Fitzgerald, 225 Ga. App. 122 (483 SE2d 135) (1997). There the debtor’s bankruptcy action was dismissed and the stay lifted so the creditor could foreclose its security interest in the debtor’s property. The debtor later filed suit against the creditor on claims of breach of fiduciary duty, breach of contract, and wrongful foreclosure. We found that res judicata did not bar the debtor’s claims, noting the effect of the bankruptcy dismissal in returning the parties to the status quo ante. Id. at 124 (1). “For a former judgment to be a bar to subsequent action, the merits of the case must [be] adjudicated.” OCGA § 9-12-42. And while an “adjudication on the merits” need not be based on a consideration of the actual merits of the case, see Woelper, supra, 269 Ga. at 110, a dismissal without prejudice is not an adjudication on the merits. See O’Kelley v. Alexander, 225 Ga. 32, 34 (165 SE2d 648) (1969).

5. Interbank argues that Dillard-Winecoff is collaterally estopped from pursuing its claims in this action. “Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866-867 (2) (463 SE2d 5) (1995). Here there were clearly no litigation and adjudication in the bankruptcy court of the claims presented in this action.

For the foregoing reasons, we find that the trial court erred in granting summary judgment to Interbank.

Judgment reversed.

Blackburn, C. J, Pope, P. J., Phipps and Mikell, JJ, concur. Andrews, P. J., and Smith, P. J., dissent.

Smith, Presiding Judge,

dissenting.

In a number of carefully reasoned opinions, this court has carved out a very limited exception to the application of the doctrine of judicial estoppel. We have held that when two factors are present, we will not apply the doctrine to prevent a debtor from bringing an action on a claim that was omitted from a bankruptcy petition. These factors are: (1) that the debtor did something to remedy the omission in the bankruptcy court; and (2) that the debtor did not benefit from the omission at the expense of his creditors. See, e.g., McBride v. Brown, 246 Ga. App. 149, 150 (538 SE2d 863) (2000). Because I cannot agree that the exception should be extended to include a case where only one of these factors is present, I respectfully dissent.

The majority ignores the fact that McBride clearly makes the two factors conjunctive; I have found no cases when the disjunctive was used or the two conditions were alternatives. Certainly, when the bankruptcy petition is actually amended, the debtor has satisfied the first condition, as well as the second. But the reverse is not true. And in my view, we should not allow the debtor to take advantage of the exception when he or she has sat idly by and made absolutely no attempt to remedy the omission. This is surely an invitation to deception. I would affirm the trial court’s grant of summary judgment to IBF because Dillard-Winecoff’s claims against IBF were barred by the doctrine of judicial estoppel.

Decided July 16, 2001

Hipes & Norton, Albert L. Norton, Jr., John E. Bellus, Jr., Kilpatrick Stockton, Jeffrey J. Toney, for appellant.

Weinstock & Scavo, Richard J. Capriola, Mark I. Sanders, Susan B. Jacobs, for appellees.

I am authorized to state that Presiding Judge Andrews joins in this dissent.

       We first adopted this doctrine in Southmark Corp., supra, and it has been “commonly applied to preclude a bankruptcy debtor from pursuing a damages claim that he failed to include in his assets in the bankruptcy petition.” Wolfork, supra.

       See McBride, supra, 246 Ga. App. 149 (inconsistent position and success requirements absent because bankruptcy dismissed and debtor moved to amend bankruptcy petition after dismissal); Jowers, supra, 245 Ga. App. 68 (inconsistent position and success requirements absent when debtor dismissed bankruptcy case without prejudice and refiles a corrected petition); Clark v. Perino, 235 Ga. App. 444 (509 SE2d 707) (1998) (inconsistent position and success requirements absent after debtor reopened bankruptcy and filed amended schedules listing undisclosed claims); Johnson, supra, 223 Ga. App. at 651 (inconsistent position, intentional manipulation, and success requirements absent after debtor successfully amended bankruptcy petition).

       Examination of our opinions outside the bankruptcy context shows that the success requirement is an independent element that should be analyzed separately. See Thaxton, supra, 239 Ga. App. at 25; Smalls, supra, 243 Ga. App. at 456.