text:
    A01A1412.
    SIMMONS v. BRADY et al.
    (555 SE2d 94)
   Barnes, Judge.

After learning he was not the father of Karen Brady’s child, for whom he had paid more than five years of child support, John Simmons sued Brady, asserting eight causes of action. He appeals the trial court’s grant of summary judgment to Brady on seven of the eight counts. Because the trial court failed to give Simmons notice and opportunity to present evidence on the converted motion for summary judgment, we vacate the judgment and remand this case for further proceedings.

1. The standard used to evaluate a summary judgment is whether a movant has shown that no genuine issue of material fact exists, and that the undisputed facts, viewed in the light most favorable to the respondent, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The standard to determine a motion to dismiss is quite different, however; the court must accept the plaintiff’s claims as true and determine whether the complaint states a cause of action. Mooney v. Mooney, 235 Ga. App. 117 (508 SE2d 766) (1998).

While the trial court may, on its own motion, convert a motion to dismiss into a motion for summary judgment, it must insure that the respondent to the motion has a “full and final opportunity” to controvert the assertions against him. Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93 (2) (483 SE2d 602) (1997). This opportunity consists of notice that the motion will be converted and an opportunity to submit evidence and be heard within 30 days. OCGA §§ 9.-11-12 (b); 9-11-56; Bays v. River Oaks Constr., 244 Ga. App. 401, 402-403 (1) (535 SE2d 543) (2000).

In this case, the record shows that Brady filed a verified answer denying everything Simmons alleged in his complaint. She then filed a motion, titled a motion to dismiss, on numerous grounds: failure to state a claim, violation of public policy, waiver and release, res judicata, statute of limitation, unclean hands, and laches. Attached to the motion were an uncertified copy of the parties’ divorce complaint, a certified copy of the order modifying Simmons’ visitation rights, an affidavit from a geneticist who concluded that Simmons was not the child’s father based on DNA analysis, and an uncertified copy of the final adoption order that terminated Simmons’ parental rights to the child. Nowhere in the motion to dismiss did Brady argue the merits of Simmons’ fraud or false swearing claims.

Simmons responded to the motion with his affidavit, verifying the allegations in his 46-page complaint and stating that he was not aware Brady had sexual relations with anyone else during their relationship or that she had “promiscuous tendencies.” If he had been aware of these things, Simmons said, he would have sought a paternity test. Simmons also included with his motion an uncertified notice from the Child Support Recovery Unit in which Brady averred she had no sex with anyone but Simmons within 90 days before or after her conception, as well as a transcript of the adoption proceedings.

The trial court converted Brady’s motion to dismiss into a motion for summary judgment and, “[a]fter considering the entire case file, briefs and argument of counsel,” granted summary judgment to Brady on all counts except the claim for intentional infliction of emotional distress. As to Count 1, the fraud count, after reciting the essential elements of an action for fraud and deceit, the court held:

Taking the “facts” as alleged by the Defendant as being true the claimed cause of the action for fraud is without merit, and is hereby dismissed. The Court is not considering conclusions, opinions and innuendo contained in the Plaintiff’s Complaint. As a matter of law, the Court determines that at the time the Defendant made a claim that the child in question was that of the Plaintiff, she did not know the claim was false; and the Plaintiff did not reasonably rely on such a claim. The Plaintiff had equal ability with the Defendant to ascertain the parentage of the child. He could have obtained an HLA test or DNA test to establish the child’s paternity. He knew the Defendant was an “exotic dancer,” had just participated in an illicit relationship with another man and had had six or seven abortions. This should have put him on notice that she was promiscuous and that there was a real possibility that he was not the child’s father. He chose to ignore the facts and was not reasonable in relying on the Defendant’s statements.

The trial court then held that, because Simmons cannot prove fraud, Brady was entitled to summary judgment on the claims of fraud, unjust enrichment, fraudulent and negligent breach of contract, and rescission of contract by fraud. The trial court did not discuss the claim for negligent infliction of emotional distress, although it granted summary judgment to Brady on that count. It further denied Brady’s motion for summary judgment on Simmons’ claim for intentional infliction of emotional distress. Finally, the trial court granted summary judgment to Brady on Simmons’ false swearing count, concluding that OCGA § 51-5-8 bars Simmons from pursuing that claim because the alleged false swearing was contained in court pleadings.

Pretermitting whether the trial court correctly concluded that evidence Brady was an exotic dancer, had previous illicit affairs, and had undergone abortions — evidence which did not appear in the record — would be sufficient as a matter of law to establish that Simmons did not reasonably rely on Brady’s representations regarding her child’s paternity, we must vacate and remand this case. The record outlined above shows that Simmons had no notice the trial court planned to convert the motion to one for summary judgment on the fraud or false swearing issues and no opportunity to submit evidence and be heard within 30 days on these issues.

Nothing in Lau’s Corp., [supra], places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint — even on issues not raised in the defendants’ motion. . . . The issues that must be rebutted on motion for summary judgment are those raised by the motion. Consequently, [Simmons] was not required to present proof on all matters raised in his complaint until appellees pierced his complaint on those issues.

Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).

Unlike the situation in Cox Enterprises v. Nix, 273 Ga. 152 (538 SE2d 449) (2000), Simmons’ submission of evidence in response to the motion to dismiss did not constitute a waiver of notice that the motion would be converted to one for summary judgment, because neither party raised or briefed the issues on which the trial court ruled. Further, unlike the situation in Cox Enterprises, Simmons did not have the opportunity to contest this issue in the trial court and has raised this procedural issue on appeal; thus, we do not reach it sua sponte.

2. We further note that the trial court granted summary judgment to Brady on Simmons’ fraud claim, holding that “[t]aking the Tacts’ as alleged by the Defendant as being true the claimed cause of the action for fraud is without merit, and is hereby dismissed.” This is not the correct standard to determine a motion to dismiss, in which the court must take the plaintiff’s claims as true before determining whether the complaint states a cause of action. Mooney v. Mooney, supra. It is also not the correct standard to determine a motion for summary judgment, in which the trial court must determine whether the moving party has demonstrated that no genuine issue of material fact exists for jury determination and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, supra.

The judgment in this case is hereby vacated and the case remanded with the direction that the trial court reconsider the motion to dismiss. If the trial court again determines that matters outside the record are to be considered and the motion to dismiss is converted to a motion for summary judgment, Simmons shall then be given the requisite statutory notice and opportunity to present evidence before any ruling on the motion.

Decided October 4, 2001.

Stephen M. Worrall, for appellant.

Perrotta & Cahn, Anthony N. Perrotta, Brian R. Cahn, for appellees.

Judgment vacated and remanded with direction.

Smith, P. J., and Phipps, J., concur.

       Brady made this statement in the portion of her brief in which she argued Simmons’ complaint was barred by a release he executed in the divorce action.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A1256.
    THE STATE v. LOY.
    (554 SE2d 800)
   Miller, Judge.

The State appeals from the trial court’s grant of the defense motion to suppress evidence gathered by the police in connection with their arrest of Jeffry Loy for driving under the influence. After a review of the evidence we reverse this ruling.

On May 2, 2000, Loy was injured when his truck crashed into a telephone pole. The fire department and an ambulance arrived at the scene of the accident first, followed by a police officer shortly thereafter. When the police officer arrived at the scene, he observed Loy standing outside of the truck. The officer also saw the fire department removing a semiconscious woman from the passenger seat of the truck. Loy was bleeding from his face and mouth and appeared to have a sprained ankle. The officer also detected a strong odor of alcohol on Loy’s breath. The ambulance driver told the officer that Loy had been driving the truck. In addition, a bystander specifically told the officer that he saw Loy driving the truck just prior to the accident. However, when the officer asked Loy how the accident occurred, Loy said that he did not remember what happened. Loy failed two field sobriety tests, and the officer arrested Loy for driving under the influence.

Loy moved to suppress any evidence gathered by the police in connection with his arrest, claiming that the police lacked probable cause to arrest him for the crime for which he was accused. The arresting officer was the only witness to testify for the State at the motion to suppress hearing about the events surrounding the accident. The trial court granted the motion, holding that “[t]he ambulance and fire department were not personal witnesses of the accident, nor was [the arresting officer]. Accordingly . . . the State did not prove by a preponderance of the evidence that [Loy] was driving the vehicle.”

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of [the] witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

In the instant case, the evidence is undisputed and no question regarding the credibility of witnesses is presented, so we conduct a de novo review of the trial court’s application of the law to the undisputed facts. The State contends that even though there were no witnesses to the accident involving Loy, the trial court erred in concluding that the arresting officer lacked probable cause to arrest Loy for driving under the influence. We agree.

“A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed an offense.” Furthermore, “[i]t is not necessary for a conviction of driving under the influence, much less for probable cause, that the driver actually be seen behind the wheel driving the car while under the influence. Such facts, as any others, may be shown by circumstantial evidence.”

In this case, the arresting officer saw Loy at the scene of the accident standing near a pickup truck, which Loy^s insurance card showed belonged to Loy. Loy was observed suffering from injuries. The officer also observed the person in the passenger seat being pulled from the truck after the accident. The ambulance driver who arrived at the scene before the officer could have seen Loy either in the driver’s seat or being removed from the driver’s side of the truck, and a bystander specifically told the officer that he saw Loy driving the truck just before the accident. The officer was authorized to rely on this evidence gathered through his on-site investigation as a basis to form an opinion that probable cause existed to arrest Loy for the crime at issue. In addition, Loy had the smell of alcohol on his breath, could not recall what happened, and failed two field sobriety tests. This court has held in similar circumstances that an officer has probable cause to arrest a suspect for driving under the influence even when no one actually sees the suspect driving the vehicle. Accordingly, the trial court erred in granting Loy’s motion to suppress.

Decided September 20, 2001

Reconsideration denied October 5, 2001

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Assistant Solicitor-General, for appellant.

Head, Thomas, Webb & Willis, William C. Head, for appellee.

Judgment reversed.

Andrews, P. J., and Eldridge, J., concur.

       (Citations and punctuation omitted.) State v. Hall, 229 Ga. App. 194, 195 (1) (493 SE2d 718) (1997).

       (Citations and punctuation omitted.) Napier v. State, 184 Ga. App. 770, 771 (1) (362 SE2d 501) (1987).

       (Citations omitted.) Hall v. State, 200 Ga. App. 585, 586 (1) (409 SE2d 221) (1991).

        See McCloud v. State, 210 Ga. App. 69, 70 (2) (435 SE2d 281) (1993); Chappell v. State, 170 Ga. App. 363-364 (2) (317 SE2d 340) (1984); Bradford v. State, 149 Ga. App. 839, 841 (256 SE2d 84) (1979).

       See Hall, supra, 200 Ga. App. at 586-587 (1) (officer had probable cause to arrest defendant for DUI after seeing extensively damaged car and finding owner of the car being treated for injuries and having alcohol on his breath); Napier, supra, 184 Ga. App. at 771-772 (1) (officer had probable cause to arrest bleeding defendant standing outside of car for DUI where defendant smelled of alcohol, blood was on driver’s side of car, and unconscious person was in passenger seat).


author: Ruffin, Judge.

text:
    A01A1284.
    OGDEN v. AUTO-OWNERS INSURANCE COMPANY.
    (554 SE2d 575)
   Ruffin, Judge.

Ronald Ogden appeals from the trial court’s grant of summary judgment to Auto-Owners Insurance Company (“Auto-Owners”). For reasons that follow, we reverse.

We review the trial court’s summary judgment ruling de novo, considering the evidence with all reasonable inferences and conclusions in favor of Ogden, the party opposing summary judgment.* Viewed in this manner, the record shows that a fire damaged Ogden’s house on May 25, 1992. Ogden reported the fire to Auto-Owners, his homeowners insurance carrier, and Auto-Owners prepared a Proof of Loss form, which placed the full cost of repair or replacement at $45,595. According to Ogden, Auto-Owners or its agent instructed him to have the repair work performed by Livingston Construction Company (“Livingston Construction”). The work proceeded, and Auto-Owners issued checks made out jointly to Ogden, Livingston Construction, and Ogden’s mortgagee totaling $32,506.92. The record shows, however, that Auto-Owners held back “depreciation” totaling $12,689 until Ogden executed the Proof of Loss statement.

On December 21, 1992, Richard Kelly, Ogden’s claims adjuster, sent Ogden the Proof of Loss form and indicated that the $12,689 check would be forwarded once Ogden executed and returned the form. Approximately two months later, Kelly wrote Thomas Jarriel, Ogden’s attorney, noting that he had previously sent Ogden a Proof of Loss statement, but that he had not yet received the executed form from Ogden. Kelly again stated that the $12,689 check would be released once Ogden returned the form. On March 17, 1993, Kelly wrote Jarriel yet again. At that point, Kelly informed Jarriel that Ogden had not sent back the Proof of Loss form and that if Ogden wanted to collect the $12,689, Kelly needed the Proof of Loss returned within 15 days. Kelly further stated that Auto-Owners would consider bills submitted only within the next 15 days, after which the file would be closed.

Ogden submitted no additional bills within the 15-day period, and Kelly closed the file. Subsequently, however, Ogden apparently sought to amend the original Proof of Loss statement. On April 12, 1993, Kelly alerted Jarriel that he viewed the amendment as a rejection of the original Proof of Loss.

In the meantime, a dispute arose between Ogden and Livingston Construction, which, in January 1993, sued Ogden for over $31,000 allegedly owed on their contract to repair the fire damage. Ogden answered and counterclaimed, asserting that Livingston Construction failed to perform the repair work in a “professional, workmanlike manner” and that the “repair work . . . [would] itself require extensive repairs.” At some point, Jarriel told Don Nolan, Ogden’s new claims adjuster, about the dispute. On August 18, 1993, Nolan wrote to Jarriel, indicating that Auto-Owners refused to become involved in the Livingston Construction lawsuit. In addition, Nolan stated that “[s]ince the statute [of limitation] has run on the time frame within which to recover the withheld depreciation [of $12,689], that recovery will not be made available to your client.” Nevertheless, communications between Jarriel and Nolan continued, and on March 3, 1994, Nolan informed counsel by letter that, “[w]ith regard to the withheld depreciation on the dwelling of $12,689.00, it is possible that Auto Owners Insurance Company would consider payment.”

Approximately six months later, Ogden sued Auto-Owners, alleging that the insurer did not pay for the loss under the policy and failed to have the repair work performed in a workmanlike manner. During the pendency of this action, the Livingston Construction lawsuit proceeded to trial. On October 17, 1995, a jury found in favor of Livingston Construction in the amount of $23,400 and for Ogden on his counterclaim in the amount of $3,800.

Auto-Owners subsequently moved for summary judgment in this action. Granting the motion, the trial court concluded that a one-year limitation period contained in the insurance contract, as well as the judgment in the Livingston Construction lawsuit, barred Ogden’s claims as a matter of law.

1. Ogden’s homeowners policy provided that “[n]o suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity . . . unless commenced within twelve months next after inception of the loss.” On summary judgment, Auto-Owners argued that this contractual limitation precluded Ogden’s claims because suit was not filed within one year of May 25, 1992, the date of the loss. Ogden countered that Auto-Owners waived the limitation provision.

We have consistently found contractual limitation periods in insurance contracts to be valid and binding. Those periods of limitation, however, can be waived. When an insurer’s conduct raises a factual question as to whether the insurer “insisted on strict compliance with the limitation provision,” a jury issue remains as to waiver.

In granting summary judgment, the trial court found no evidence in the record that Auto-Owners waived its right to rely on the contractual limitation period. On August 18, 1993, Nolan informed Jarriel that, because the one-year limitation period had expired, Ogden would not be able to recover the $12,689 that Auto-Owners had withheld from the repair payments. At that point, Auto-Owners clearly sought strict compliance with the limitation period. The record shows, however, that discussions between Auto-Owners’ adjuster and Ogden continued after the August 18, 1993 letter. As a result of those discussions, Nolan wrote Jarriel on March 3, 1994, stating that “it is possible that [Auto-Owners] would consider payment” of the $12,689.

We recognize that an insurer does not waive a contractual limitation period simply by “engaging in negotiations looking toward a possible settlement of [a] loss or claim.” In this case, however, Nolan denied liability based on the limitation period, then, despite expiration of that period, engaged in further discussions and informed Ogden’s counsel that Auto-Owners might consider payment. These particular circumstances raise a question of fact as to waiver. Accordingly, the trial court erroneously granted summary judgment to Auto-Owners based upon the contractual limitation period.

2. The trial court further concluded that the final judgment rendered in the Livingston Construction lawsuit barred Count 2 of Ogden’s complaint. Again, we disagree.

“The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.”* Res judicata thus requires a claimant to bring in one action all claims against a party or its privies that arise out of a particular set of circumstances.

Pursuant to Carter v. Allstate Ins. Co. , Ogden claimed in Count 2 that, “having undertaken to repair the original fire damage to [his] home, [Auto-Owners] breached a contractual obligation to perform those repairs (or to see to it that they were performed) in a skillful and workmanlike manner.” According to Auto-Owners, under this theory of recovery, it is responsible for Livingston Construction’s allegedly insufficient repairs and is thus in privity with Livingston Construction. Auto-Owners asserts, therefore, that Ogden could have brought — and, under the doctrine of res judicata, was required to bring — this claim in the Livingston Construction lawsuit.

Even assuming, without deciding, that Auto-Owners and Livingston Construction are privies, we cannot find that res judicata precludes Ogden’s claim. In the prior lawsuit, Ogden asserted that Livingston Construction failed to perform the work called for by the repair contract in a professional, workmanlike manner. Ogden has alleged a different claim against Auto-Owners. Here, Ogden claims that Auto-Owners breached a contractual duty arising from the insurance contract to restore Ogden’s home to a habitable condition. Although both claims relate to Ogden’s fire-damaged house, they are not “identical causes of action” because they stem from two separate contracts. Under these circumstances, Ogden’s failure to join Auto-Owners in the Livingston Construction lawsuit does not constitute res judicata as to Count 2 in this case.

Furthermore, to the extent the trial court based its summary judgment ruling on collateral estoppel, it erred. 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.” The trial court determined that Ogden’s “adverse result on his counterclaim in the previous suit [with Livingston Construction] precludes his current suit alleging faulty workmanship against Auto-Owners.” The record shows, however, that Ogden did not lose his counterclaim against Livingston Construction; in fact, the jury found in his favor and awarded him $3,800 on the claim.

We cannot conclude that the Livingston Construction jury rejected Ogden’s claim that his home was repaired in a faulty manner. The judgment in that case, therefore, does not collaterally estop Ogden from arguing that Auto-Owners breached a contractual duty to ensure proper, workmanlike repairs. Accordingly, the trial court erred in granting Auto-Owners summary judgment on this ground.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

Decided August 31, 2001

Reconsideration denied October 5, 2001

Lane & Jarriel, Thomas F. Jarriel, for appellant.

Bullard, Moody, Long & Garcia, Daniel Bullard IV, Miguel A. Garcia, Jr., for appellee.

        Corouthers v. Doe, 244 Ga. App. 491 (536 SE2d 165) (2000).

       At first glance, Count 2 of Ogden’s complaint appears to allege misrepresentation or fraud. During the summary judgment proceedings, however, Ogden clarified this claim as alleging that Auto-Owners breached a contractual duty to have the repair work completed in a workmanlike maimer.

       The trial court initially denied Auto-Owners’ summary judgment motion. Auto-Owners later renewed its motion, and the trial court reconsidered that ruling.

       Ogden also argued below that Auto-Owners made a “new promise to pay” that renewed his right to bring suit. The trial court rejected this argument, finding “no evidence of a new agreement in writing.” See OCGA § 9-3-110 (“A new promise, in order to renew a right of action already barred or to constitute a point from which the limitation shall commence running on a right of action not yet barred, shall be in writing, either in the party’s own handwriting or subscribed by him or someone authorized by him”). Although Ogden raises this “new promise to pay” argument on appeal, he has made no effort to identify the “new promise,” describe when it occurred, or point to any evidence of it in the record. We find no error in the trial court’s decision to reject this argument.

        See Appleby v. Merastar Ins. Co., 223 Ga. App. 463, 464 (477 SE2d 887) (1996); Sun-trust Mtg. v. Ga. Farm &c. Ins. Co., 203 Ga. App. 40, 41 (416 SE2d 322) (1992).

        Appleby, supra.

       Id. at 464-465. See also Lynn v. Ga. Farm &c. Ins. Co., 189 Ga. App. 209, 211 (1) (b) (375 SE2d 259) (1988) (given insurer’s conduct before and after contractual limitation period expired, “ ‘there is evidence that could lead a jury to believe the intent of the parties was to negotiate a settlement, thus impliedly waiving the contractual limitation’ ”).

       OCGA § 33-24-40 (3). See also Appleby, supra.

       See Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989) (“A waiver may be express, or may be inferred from actions, conduct, or a course of dealing. Waiver of a contract right may result from a party’s conduct showing his election between two inconsistent rights.”) (punctuation omitted).

       Neither party addressed below whether the contractual limitation period applies to Ogden’s allegations in Count 2 that Auto-Owners failed to ensure proper repair of his home. See Lee v. Safeco Ins. Co., 144 Ga. App. 519, 521 (2) (241 SE2d 627) (1978) (refusing to apply one-year contractual limitation period to claim that insurance company failed to properly repair or restore the insured’s home). Even if the limitation period applies to that claim, however, a question of fact remains as to waiver.

        Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865 (1) (463 SE2d 5) (1995).

        Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, P.C., 214 Ga. App. 193 (447 SE2d 101) (1994).

       197 Ga. App. 738 (399 SE2d 500) (1990).

       Id. at 741-742 (2).

       See id. at 742.

        Waldroup, supra at 865. See also Nationwide-Penncraft, Inc. v. Royal Globe Ins. Co., 162 Ga. App. 555, 556 (1) (291 SE2d 760) (1982) (“Here we are involved with individual contracts of insurance. Within the period of the appropriate contractual or statutory limitation, a separate suit could conceivably be brought on each contract, since each constitutes a cause of action rather than a theory of recovery”) (emphasis supplied).

       Although the trial court did not specifically reference collateral estoppel in its summary judgment order, it found that Ogden could not relitigate issues already decided adversely to him in the Livingston Construction lawsuit. Collateral estoppel, therefore, apparently factored into the trial court’s ruling.

        Waldroup, supra at 866-867 (2).

       The only issue before us is whether the trial court erred in granting Auto-Owners’ summary judgment motion. We do not address whether collateral estoppel precludes litigation of any particular issues in this lawsuit.


author: Pope, Presiding Judge.

text:
    A01A0867.
    In the Interest of S. E. L., a child.
    (555 SE2d 115)
   Pope, Presiding Judge.

The father of S. E. L. appeals the termination of his parental rights. He contends there was insufficient evidence to support the termination order.

On appeal, we must determine

whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. On appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134 (1) (501 SE2d 296) (1998).

Mr. L. fathered two children with Ms. M. out of wedlock. The first child, S. L. M., was born on August 1,1998. Ms. M. has a history of not adequately providing for her children. S. L. M. was her ninth child, and her rights to all of her other children had been terminated. Shortly áfter that child was bom, the Cobb County Department of Family & Children Services (DFCS) took custody. The mother quickly consented to the termination of her parental rights. At one point, S. L. M. was returned to Mr. L., and Mr. L. was clearly instructed that Ms. M. could not be allowed around the child. But he continued to have a sexual relationship and friendship with her. At a subsequent mediation session, Mr. L. consented to the termination of his parental rights to S. L. M., who was only 13 months old at the time.

Unbeknownst to Mr. L., when he relinquished rights to S. L. M., Ms. M. was already pregnant with S. E. L., who was born at least two months premature on December 6, 1999. The mother tested positive for cocaine, alcohol, and antidepressants at the time of the birth. The child needed blood transfusions and had to stay in the hospital for three months. The child has asthma and has needed an apnea monitor from birth through at least the date of the hearing that is the subject of this appeal.

Mr. L. did not find out about the pregnancy until Ms. M.’s mother told him when the child was bom. Although Mr. L. appeared at the hospital for the birth and visited the child there on a couple of occasions thereafter, neither he nor Ms. M. appeared in court for two hearings regarding the child during the child’s hospitalization. At these hearings, based on the mother’s known drug use and lack of parenting skills, and on the father’s continued association with the mother, the Juvenile Court of Cobb County placed the child in the custody of DFCS and held that the child was deprived.

On January 13, 2000, DFCS developed a case plan designed to provide permanent options for the child. The plan called for reunification with Mr. L.; however, DFCS had a concurrent plan to terminate the parents’ rights. Mr. L. signed the case permanency plan. The plan provided that Mr. L. had to fulfill his support obligations, both financial and medical, while the child was in foster care, that he obtain permanent employment, that he obtain permanent housing, and that he legitimate the child. DFCS caseworkers told Mr. L. that he also needed to obtain training on the use of an apnea monitor and cardiopulmonary resuscitation (CPR) skills in order to be able to care for the child’s medical needs.

On March 16, 2000, DFCS filed a petition to terminate Ms. M.’s and Mr. L.’s rights as parents to the child. On April 11, 2000, a citizens review panel conducted a case review and recommended termination of parental rights. The final hearing was held on November 9, 2000. At the hearing, Ms. M. consented to termination of her parental rights. On November 27, 2000, the court issued a detailed order terminating Mr. L.’s right to parent S. E. L.

1. OCGA § 15-11-94 (formerly § 15-11-81) establishes a two-step process for considering parental rights cases. The court is first required to determine whether there is clear and convincing evidence of parental misconduct or inability. If there is, the court considers whether termination of parental rights is in the best interest of the child. In the Interest of C. D. A., 238 Ga. App. 400, 401 (519 SE2d 31) (1999).

2. Under the first step of the test,

[a] finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. [Cit.] Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.

Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981). Furthermore, past unfitness alone is insufficient; “[c]lear and convincing evidence of present unfitness is required. [Cits.]” In re A. J. M., 169 Ga. App. 477, 478 (313 SE2d 495) (1984). The juvenile court must determine parental misconduct or inability by finding that each criterion of OCGA § 15-11-94 (b) (4) (A) (i) through (iv) has been met.

(a) The court must first find that the child is deprived. OCGA § 15-11-94 (b) (4) (A) (i). When the juvenile court awarded temporary custody to DFCS, it found that the child was deprived and entered an order to that effect, which the father did not appeal. Accordingly, he is bound by that finding. In the Interest of C. J. V., 236 Ga. App. 770, 774 (513 SE2d 513) (1999).

(b) The court must next find that a lack of proper parental care or control is the cause of the deprivation. A lack of proper care may be established by showing, among other things, “past physical, mental, or emotional neglect of the child or of another child by the parent.” OCGA § 15-11-94 (b) (4) (B) (v). The court may also consider failure to comply with a reunification plan. In the Interest of J. W. H., 245 Ga. App. 468, 469 (1) (a) (538 SE2d 112) (2000).

Here, Mr. L.’s actions related to S. L. M. provide evidence of neglect of that child, and therefore evidence of a lack of proper care of S. E. L. Further, there was unrebutted evidence that Mr. L. failed to support or offer to support S. E. L. while the child was in foster care or to pay for the child’s medical needs despite the fact that the child required two surgeries. He admitted that DFCS caseworkers asked him to obtain training on the use of an apnea monitor and CPR skills, but that he never did. Mr. L. also stated that his family had a cure for asthma that involved the child drinking juice from a coconut and then burying the coconut, and that he would not rule out treating S. E. L.’s asthma in this manner. With regard to permanent employment, although Mr. L. was drawing workers’ compensation for a job-related injury, he signed the case plan long after his injury and thereby agreed to obtain employment. Yet he failed to even search for employment during the entire time at issue.

Finally, one of the court’s and DFCS’s major concerns was Mr. L.’s failure to keep his distance from Ms. M. because of her manifest inability to care for a child. Although he denied that they have a relationship, during cross-examination, Mr. L. admitted that he could not guarantee that he would stay away from Ms. M. in the future.

Mr. L. argues that DFCS never identified a specific amount of money that he should pay for support and he was never ordered by a court to pay. But Mr. L. had, at a minimum, a statutory duty to provide support, OCGA § 19-7-2, and his lack of initiative is compelling support for the conclusion that Mr. L. is not an able parent. And though Mr. L. argued that DFCS failed to take reasonable efforts to help him reunify with S. E. L., it is Mr. L. who failed to comply with the reunification plan given to him.

Although there is a factual dispute about whether Mr. L. was given an adequate opportunity to bond with the child, the above facts are a sufficient basis upon which a rational trier of fact could have found clear and convincing evidence that Mr. L.’s lack of proper parental care or control was the cause of S. E. L.’s continued deprivation. See OCGA § 15-11-94 (b) (4) (A) (ii).

(c) The court must next find that there is a likelihood that the cause of deprivation will continue. OCGA § 15-11-94 (b) (4) (A) (iii). Evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to their parent. In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232) (1998). Here there was evidence that Mr. L. had not taken any steps to care for his child’s medical needs, he would not rule out using his coconut asthma remedy on the child, he had not provided any financial support, and he could not guarantee that he would keep the child away from Ms. M. This authorized the court to find by clear and convincing evidence that the deprivation is likely to continue or will not likely be remedied.

In the Interest of D. C. N. K., 232 Ga. App. 85 (501 SE2d 268) (1998), is distinguishable. There, the fact that the two children involved would no longer be subjected to their physically abusive mother meant that “the primary cause of the lack of proper parental care and control is not at all likely to continue. . . .” Id. at 90. But in the present case, Mr. L. had yet to receive the proper medical training for the child and could not assure the court that he would avoid the mother or that he would provide appropriate medical care for the child.

Decided October 5, 2001.

Clark & Justice, Joseph T. Justice, O’Brien & Koontz, David J. Koontz, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Sanders B. Deen, for appellee.

(d) The court also found that continuation of the deprivation would likely cause harm. Combined with the evidence of deprivation, the circumstances authorized the court to make that finding. See In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998).

Mr. L. also contends that the trial court applied the wrong standard when it concluded that there is a “strong presumption that Mr. [L.] will not be able to properly parent this child in the future.” However, the court’s findings of law clearly show that it knew, understood, and applied the correct standard of clear and convincing evidence.

3. Under the second step of the test, the court must determine whether termination is in the best interest of the child. “ ‘Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.’ [Cit.]” In the Interest of C. N. H., 238 Ga. App. 50, 53-54 (2) (517 SE2d 589) (1999).

The father’s lack of financial and proper medical support, together with his continued association with the mother, authorizes the conclusion that termination is in S. E. L.’s best interest. Further, Novella Bolden, an adoptions caseworker for DFCS, testified that both S. L. M. and S. E. L. were placed in the same foster home and that the foster parents desire to adopt both children. In addition, the guardian ad litem recommended placement with the foster parents.

Contrary to Mr. L.’s contention, this is not a case where the only ground for finding that termination was in the child’s best interest is that the parent had a substandard manner of living. See Shover v. Dept. of Human Resources, 155 Ga. App. 38 (270 SE2d 462) (1980).

4. Mr. L. asserts that the trial court also erred by finding abandonment. This question is moot because, as shown above, there are sufficient grounds for termination without a finding of abandonment.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       Mr. L. has not been employed since 1998. He injured his left shoulder at that time and is still recovering. Although he is incapable only of lifting more than 35 to 40 pounds on one side, he claims that he is not qualified to do any work other than construction because he has only an eighth grade education. But, he has never applied for other work. And, he claims that he is not so disabled that he could not take care of the baby. His only source of income is workers’ compensation payments of $266 per week. He has no savings.

       Mr. L. claims that he was not allowed to visit the child between March 2000, after it left the hospital, and August 2000. There was some corroboration of this testimony. Between August and the November hearing, Mr. L. visited the child once a month except for one month, when he claimed to be ill. But, this makes only three visits at most, and he lived very close to the DFCS offices. Furthermore, Mr. L. was responsible for initiating visits and is therefore responsible for his own lack of diligence.


text:
    A01A0984.
    CARSWELL v. THE STATE.
    (555 SE2d 124)
   Ruffin, Judge.

A jury found Uriah Carswell guilty of possession of cocaine with intent to distribute, possession of marijuana, and possession of a firearm during the commission of a crime. On appeal, Carswell challenges the sufficiency of the evidence. Carswell also asserts that the trial court erred in improperly limiting his closing argument, in failing to declare a mistrial based upon the State’s improper closing argument, and in instructing the jury. For reasons that follow, we affirm in part and reverse in part.

. 1. In two enumerations of error, Carswell challenges the sufficiency of the evidence. In reviewing such challenge, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence.

So viewed, the evidence demonstrates that, on October 29, 1999, law enforcement officers were investigating a suspected drug dealer known by the nickname “Hop.” The officers were working with a confidential informant, who called Hop’s cell phone to arrange to purchase cocaine at the Courtesy Inn. The officers then drove to a gas station near the Courtesy Inn.

Upon reaching the gas station, the confidential informant attempted to call Hop from a pay phone, but received no response. Hop was subsequently seen walking into the Courtesy Inn. The confidential informant placed a second call and spoke with Hop. Shortly thereafter, Carswell came out of the Courtesy Inn and began walking toward the pay phone. Deputy Whitworth, from the Bartow County Sheriff’s Office, pulled his car up to Carswell. As soon as Carswell spotted the deputy, Carswell attempted to flee. Whitworth caught Carswell, searched him, and found in his pocket a cell phone, part of a plastic bag containing approximately $100 worth of cocaine, $1,242, and a key for a room at the Courtesy Inn. With Carswell’s consent, law enforcement officers searched the motel room, and Sergeant Cheek of the Cartersville Police Department inventoried the contents. In the room, Cheek discovered additional crack cocaine, digital scales covered with cocaine residue, a box of plastic baggies, a plastic bag of marijuana inside an eyeglass case, and a 9-millimeter gun in the exterior side pocket of a suitcase.

(a) Carswell asserts that, “[d]ue to the extreme lack of evidence against” him, the trial court should have directed a verdict of acquittal. With respect to the drug charges, however, there was ample evidence to support Carswell’s conviction. The evidence showed that, after the informant called the drug dealer from the pay phone, Cars-well left the hotel and walked toward the phone. When Carswell was approached by law enforcement, he attempted to flee, but was captured. Law enforcement officers then searched Carswell and found cocaine, a significant amount of money, a cell phone, and a hotel key. A search of the hotel room yielded additional crack cocaine, digital scales covered with cocaine residue, and a box of plastic baggies. Under these circumstances, the jury was authorized to conclude that Carswell was guilty beyond a reasonable doubt of possession of cocaine with intent to distribute.

The evidence also was sufficient to support Carswell’s conviction for possession of marijuana. Not only was the marijuana discovered in the hotel room for which Carswell had the key, but it was stashed in what appeared to be Carswell’s eyeglass case. According to the officer who inventoried the contents of the hotel room, at the time of Carswell’s arrest, he was wearing glasses of the same brand as the eyeglass case. Thus, there was evidence linking Carswell to the marijuana, and the trial court was not required to direct a verdict on this count.

(b) In a separate enumeration of error, Carswell contends that the trial court erred in refusing to direct a verdict on the charge of possession of a firearm during the commission of a crime.

OCGA § 16-11-106 (b) (4) provides, in pertinent part, that it is a felony for any person to “have on or within arm’s reach of his or her person a firearm or a knife . . . during the commission of[ ] or the attempt to commit. . . [a]ny [felony] involving the possession ... or possession with intent to distribute any controlled substance.” In interpreting this statute, “we must look for the legislative intent. We must also give words their ordinary and literal meaning.” Moreover, we must strictly construe this criminal statute against the State.

Here, the statute requires that the weapon be either on or within arm’s reach of the person charged with possessing a firearm during the commission of the felony. Such language conveys a legislative intent that the person committing the felony have immediate access to the firearm. This interpretation is consistent with legislative amendments to the statute. Prior to 1987, OCGA § 16-11-106 (b) provided that someone charged under this Code section had to “have on his person a firearm or knife . . . during the commission of, or the attempt to commit,” a felony. In 1987, however, the statute was amended “so as to clarify that such firearm or knife must be on or within arm’s reach of the person.”

“From the addition of words, it may be presumed that the legislature intended some change in the existing law; but it is also presumed that the legislature did not intend to effect a greater change than is clearly apparent either by express declaration or by necessary implication.” By adding the words “within arm’s reach,” the legislature extended the application of the statute to include weapons to which a felon had immediate access in addition to those weapons the felon actually had on his person. It does not follow, however, that the legislature intended to criminalize the mere possession of a weapon by a person who, after putting the weapon away, subsequently commits a felony.* Accordingly, we must examine the record to see what evidence supports the conclusion that Carswell had the gun either on him or within arm’s reach during the commission of a felony.

The record clearly demonstrates that Carswell did not have the gun on him. According to Sergeant Cheek, the gun was in the outer pocket of a suitcase in Carswell’s hotel room. As the pocket was zipped shut, we agree with Carswell that the evidence is insufficient to demonstrate that the weapon was within arm’s reach during the commission of the felony.

Gibson v. State does not require a different result. In that case, a gun was found underneath a couch. Because cocaine was found on a coffee table in front of that couch, this Court concluded that sufficient circumstantial evidence supported a finding that the defendant had the gun within arm’s reach during the commission of the crime. Unlike in Gibson, the circumstantial evidence here does not support a finding that Carswell had the gun within arm’s reach during the commission of the crime. Rather, the gun was in a zippered compartment of a suitcase, which could have been zipped the entire timé that Carswell was in possession of the cocaine. Under such circumstances, Carswell would not have had immediate access to the weapon, which is required to sustain a conviction under OCGA § 16-11-106 (b). To hold otherwise would, in essence, criminalize the mere possession of a firearm, which is an unwarranted extension of the statute. Accordingly, we reverse Carswell’s conviction for possession of a firearm during the commission of a felony.

2. Carswell asserts that the trial court erred in charging the jury. According to Carswell, he requested that the court instruct jurors on the inferences that could be drawn from the presence of cash on a person at the time of that person’s arrest. The record, however, does not contain any formal written request for such charge, and “[fit was essential to the review of this enumeration that we have timely access, either in the record or transcript, to appellant’s written request for charge. When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” Accordingly, we affirm as to this issue.

3. In two enumerations of error, Carswell contends that the trial court erred during closing arguments. In one enumeration, Carswell argues that the trial court erred in denying his motion for mistrial after the prosecutor commented on his failure to testify. In the other claim of error, Carswell maintains that the trial court improperly limited his “right to summation by refusing to allow [him] to argue reasonable inferences about the State’s confidential informant.” Pretermitting whether the trial court erred, we find no basis for reversal.

Although the transcript contains Carswell’s objections to the closing arguments, the arguments, themselves, were not transcribed. As this Court recently reiterated,

[w]here the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). . . . When this is not done, there is nothing for the appellate court to review. Therefore, due to the omission of closing arguments from the transcript, we cannot review [this] enumeration of error.

Thus, we affirm.

Decided October 5, 2001.

Joshua D. Earwood, for appellant.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ellington, J., concur.

       See Perkins v. State, 244 Ga. App. 412 (535 SE2d 802) (2000).

       We note that, in his statement of facts, the appellant has failed to provide a single citation to the record in violation of Court of Appeals Rule 27 (a) (1). Because the record is small and the appellant has cited the record to support a few of his factual assertions in the argument portion of his brief, we have exercised our discretion and considered the appeal on its merits. Nevertheless, we remind counsel for appellant that, pursuant to Court of Appeals Rule 7, failure to follow our rules may subject an appeal to dismissal as well as subject counsel to contempt.

       See Lester v. State, 226 Ga. App. 373, 377-378 (3) (487 SE2d 25) (1997); Bowman v. State, 222 Ga. App. 893, 898 (5) (476 SE2d 608) (1996).

        See Brown v. State, 244 Ga. App. 440, 442-443 (2) (535 SE2d 785) (2000).

       (Emphasis supplied.)

       (Footnotes omitted.) Sequeira v. State, 243 Ga. App. 718, 719 (1) (534 SE2d 166) (2000).

       See id.

       See Ga. L. 1986, p. 1206, § 1.

       Ga. L. 1987, p. 624.

       (Punctuation omitted.) Hillman v. State, 232 Ga. App. 741, 743 (1) (b) (503 SE2d 610) (1998).

       Indeed, if this were the case, the legislature would have used language similar to that in OCGA § 16-11-131 (b), which criminalizes the mere possession of a firearm by a convicted felon.

       223 Ga. App. 103 (1) (476 SE2d 863) (1996).

       Id.

       (Punctuation omitted.) Pick v. State, 233 Ga. App. 198, 199 (504 SE2d 64) (1998).

       Although the record does not contain Carswell’s written request to charge, it is clear that such charge was discussed at a charge conference.

       (Citation omitted.) Baker v. State, 247 Ga. App. 25 (2) (543 SE2d 70) (2000).


author: Andrews, Presiding Judge. Miller, Judge, Eldridge, Judge,

text:
    A01A1058.
    COCHRAN v. EMORY UNIVERSITY.
    (555 SE2d 96)
   Andrews, Presiding Judge.

Kathy Cochran appeals from the trial court’s order granting summary judgment to Emory University on Cochran’s medical malpractice claim. The court held that Cochran was judicially estopped from asserting the claim because she had failed to list it as a potential asset in her bankruptcy case. Cochran claims on appeal that the trial court should have granted her motion for reconsideration of its summary judgment order because she subsequently moved to reopen her bankruptcy case. Because the trial court correctly found that the petition to reopen the bankruptcy was untimely, we affirm.

This case arose when Cochran went to Crawford Long Hospital for the birth of her baby on January 2, 1996. During the delivery, doctors administered epidural anesthesia through a catheter in her back. Cochran began having physical problems after the baby’s birth and decided to have a CT scan and MRI done in either October or November 1997 at the facility where she worked as a radiology technician. Cochran said she was present when the doctor interpreted the CT scan and he told her there was a foreign body between her second and fourth lumbar vertebrae. This was later determined to be the tip of the catheter used to administer the anesthesia during delivery.

The Cochrans filed a bankruptcy petition on March 11, 1997. In that petition, Cochran was required to list all “contingent and unliquidated claims of every nature.” Cochran left this section blank. On June 27, 1997, the bankruptcy court discharged the Cochrans’ debts and closed the bankruptcy. Cochran filed the instant suit against Emory University on December 31, 1997, approximately six months after the bankruptcy discharge.

Emory filed a motion for summary judgment, contending that Cochran was judicially estopped from bringing the medical malpractice claim. Cochran responded, claiming that she told her bankruptcy attorney about the foreign object in her back but he told her that because she did not have a suit filed or a claim made, she need not disclose it on her bankruptcy petition.

The court granted Emory’s motion, finding that this misapprehension did not relieve Cochran of her duty to disclose the potential claim. The trial court also noted that Cochran never moved to reopen her bankruptcy case and amend her petition. The court’s order granting Emory’s motion for summary judgment was filed on January 25, 1999. On February 10, 1999, Cochran moved to reopen her bankruptcy case.

Cochran then filed a motion for reconsideration of the court’s order granting summary judgment to Emory, claiming the court should reconsider in light of her petition to reopen the bankruptcy. The court denied the motion, finding that Cochran’s attempts to amend her petition were untimely and made only after she received the unfavorable order on summary judgment. Cochran now appeals, claiming the trial court erred in granting summary judgment to Emory because she took steps to reopen her bankruptcy case.

The federal doctrine of judicial estoppel 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. This doctrine is commonly applied to preclude a bankruptcy debtor from pursuing a damages claim that he failed to include in his assets in the bankruptcy petition. A failure to reveal assets, including unliquidated tort claims, operates as a denial that such assets exist, deprives the bankruptcy court of the full information it needs to evaluate and rule upon a bankruptcy petition, and deprives creditors of resources that may satisfy unpaid obligations. The application of the doctrine preserves the integrity of the judicial forum by not permitting a debtor to take inconsistent positions to manipulate the system.

(Punctuation and footnotes omitted.) Wolfork v. Tackett, 273 Ga. 328-329 (540 SE2d 611) (2001).

“The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary.” Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994).

1. Cochran opposed the motion for summary judgment by arguing that judicial estoppel should not apply because she did not intend to deceive anyone and the reason she did not list the tort claim in her bankruptcy case was because her lawyer told her it was not necessary. As previously stated, the trial court correctly found this was no defense, citing Byrd v. JRC Towne Lake, 225 Ga. App. 506 (484 SE2d 309) (1997). Accord Wolfork, supra.

2. In her motion for reconsideration and now on appeal, Cochran claims that because she moved to reopen her bankruptcy petition, judicial estoppel should not apply. It is true that this Court has held that judicial estoppel does not apply when a plaintiff has successfully amended her petition to include any claim against the defendant as a potential asset. Under those circumstances, it cannot be said that the present position in the trial court is inconsistent with the position asserted by plaintiff in a prior proceeding and, therefore, judicial estoppel does not bar her claim. Clark v. Perino, 235 Ga. App. 444, 446 (509 SE2d 707) (1998); Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996).

Cochran relies on Johnson, supra, in support of her argument on appeal; however, Johnson is not on point. In that case, plaintiff moved to amend his petition after defendant raised the bar of judicial estoppel in its motion for summary judgment. Id. at 651. Here, Cochran chose to respond to the motion and await the trial court’s order instead of moving to reopen her bankruptcy case.

Whether to grant a motion for reconsideration after ruling on an issue lies within the sound discretion of the trial court. See generally Buffington v. Gold Kist, 179 Ga. App. 393, 394 (346 SE2d 577) (1986). Here, Cochran was on notice of Emory’s intention to raise a judicial estoppel defense for over two months after the motion for summary judgment was filed and before the court entered its order. Yet Cochran did not petition to reopen her bankruptcy until over two weeks after the entry of the court’s order granting summary judgment. Moreover, at the time she filed her motion for reconsideration with the trial court, there had been no decision by the bankruptcy court on whether to allow her to reopen the case. On these facts, it was clearly within the sound discretion of the trial court to find that Cochran “did not act with the requisite diligence” after the bar of judicial estoppel was raised.

Judgment affirmed.

Johnson, P. J., Ruffin and Ellington, JJ., concur and concur specially. Miller, J., concurs specially. Eldridge and Barnes, JJ., dissent.

Miller, Judge,

concurring specially.

Although I greatly empathize with the plaintiff’s plight, I am constrained by binding precedent to agree with the trial court’s conclusion that judicial estoppel bars plaintiff’s claim. Ignoring the clear guidance given by this Court in prior decisions, plaintiff’s counsel failed for months to reopen and amend her bankruptcy petition even after she clearly had a cause of action for her injury and after Emory University moved for summary judgment on the grounds of judicial estoppel. Therefore, I feel it is necessary to write separately to emphasize certain points.

Two cases are painfully clear on the issue of judicial estoppel in these circumstances. In Clark v. Perino, the plaintiff acted pro se in her bankruptcy petition and failed to list a personal injury cause of action due to ignorance. Once the bankruptcy was over, opposing counsel in a deposition in the personal injury cause of action raised the omission, whereupon plaintiff successfully moved to reopen the bankruptcy to amend her asset schedule to include the omitted cause of action. Asserting judicial estoppel, defendants then moved for summary judgment, which the trial court granted. We reversed, holding that although judicial estoppel would normally bar the cause of action, the plaintiff’s actions in promptly and successfully seeking to reopen and amend her bankruptcy schedule precluded the application of the doctrine. We pointed out that in these circumstances a jury could find that the plaintiff had not manipulated the court system to her advantage, and that the claim would inure to the benefit of the creditors.

Here-Cochran learned of her cause of action against Emory no later than November 27, 1997. Cochran’s counsel then filed suit against Emory, and even though counsel received Emory’s motion for summary judgment accusing Cochran of failing to list the claim in. her bankruptcy asset schedule, her counsel did nothing to reopen the bankruptcy and to amend the proper asset schedule until February, 10, 1999 — some 15 months after Cochran and her counsel knew of the claim. In the meantime, the trial court entered summary judgment against Cochran. Even though Cochran is excused from listing* the claim originally, plaintiff and plaintiff’s counsel’s later dilator/ conduct after full knowledge is inexcusable and is an obvious manipulation of the court system to Cochran’s benefit. Judicial estoppel is designed to prevent this very kind of misconduct.

The other controlling case is Harper v. GMAC Mtg. Corp. In Harper we reviewed the case law in this area, including a quote from Reagan v. Lynch, where the bar was instructed 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.” Harper concluded: “After the filing of the motion to dismiss, the [plaintiffs] were aware that they faced dismissal if they did not seek to amend their bankruptcy asset schedule. Despite the passage of ten weeks, they chose not to do so and thereby forfeited their right to pursue the damage claims.”

Similarly, on October 16, 1998, Cochran and her counsel received Emory’s motion for summary judgment asserting her failure to list the claim as a bankruptcy asset, but did nothing to reopen the bankruptcy and to amend the asset schedule for more than 14 weeks. Cochran “thereby forfeited [her] right to pursue the damage claims.” After the trial court correctly granted summary judgment on January 25, 1999, then and only then (and then not even for two more weeks) did Cochran’s counsel file a pleading to reopen the bankruptcy to allow the cause of action to inure to the creditors’ benefit. Under the binding holding of Harper which involved ten weeks, I am constrained to find that the trial court did not err in concluding that Cochran’s conscious decision for fourteen weeks not to seek to correct the asset schedule authorized the application of judicial estoppel to bar her claim. For these same reasons, the trial court did.not abuse its discretion in denying the motion for reconsideration.*

The dissent focuses its analysis on Cochran’s inability, despite reasonable diligence, to discover the cause of her injury until after the bankruptcy action was over. The dissent concludes that Cochran was excused from listing the claim on her bankruptcy petition because “[t]here should be no duty to schedule the claim on the bankruptcy petition until the cause of action has been discovered as a potential claim.” I agree completely with the dissent on this point. I disagree, however, with the dissent’s conclusion that because Cochran was initially excused from listing the asset in her bankruptcy schedules, she was therefore justified in not seeking timely to amend those schedules once she discovered the claim. The dissent ignores (1) the 14-week interval between Emory’s motion for summary judgment asserting the failure to list this asset and the trial court’s entry of summary judgment on this point, during which time Cochran’s counsel did nothing to reopen the bankruptcy and to amend the appropriate schedule, and (2) the overall 15-month delay between Cochran’s discovery of the cause of her injury and her counsel’s belated attempt to amend her bankruptcy schedule, which attempt occurred only after Cochran lost on Emory’s motion for summary judgment raising this issue. Since the case law is so clear on the forfeiture effect of such dilatory conduct, I am compelled to con-elude that judicial estoppel applies to bar Cochran’s claim.

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

Eldridge, Judge,

dissenting.

I respectfully dissent.

This case raises issues of first impression as to: (a) whether judicial estoppel should be a bar to a medical malpractice action because the plaintiff failed to schedule the undiscovered malpractice claim as an asset at the time of filing in a Chapter 7 bankruptcy petition; and (b) whether the trial court abused its discretion in denying the motion for reconsideration of the grant of summary judgment so as to allow the plaintiff to show that she was amending and reopening the bankruptcy to schedule such claim, which claim she discovered after the discharge in bankruptcy.

On January 2, 1996, Kathy Thompson Cochran underwent an epidural catheterization of her spine as part of the delivery of her baby at Emory University d/b/a Crawford Long Hospital. In October 1996, Cochran, an employee of a CT scanning facility, volunteered for a scan to be performed on her spine as part of the calibration of a new machine. The radiologist discovered a foreign body in her spine but did not identify the foreign body at that time or how it got there. Subsequently, on August 19, 1997, Cochran went to a personal injury law firm regarding the foreign object in her spine to determine if there was a potential claim against anyone, and these lawyers sent her to be examined in Athens by a radiologist to determine if there was a potential claim. The radiologist could only confirm the presence of a foreign body but could neither identify it nor determine the source. Finally on October 27, 1997, for the first time, the original radiologist, on request of plaintiff’s counsel for a reevaluation of the CT scan, determined that the foreign body was a catheter tip. Since plaintiff’s only catheterization was during her delivery, then this determination also identified the source, cause, and potential defendant for the first time. At this time, plaintiff knew for the first time that she had sustained a potentially actionable tortious injury, resulting from her epidural catheterization by the defendant.

However, previously on March 11, 1997, Mr. and Mrs. Cochran filed for bankruptcy under Chapter 7. At that time, they informed their bankruptcy attorney of the presence of the foreign body in her spine, which was all that they knew then; the bankruptcy lawyer advised them that in his opinion there existed no viable claim for medical malpractice, because the object was unidentifiable, and therefore, the claim did not have to be scheduled in the bankruptcy petition as a potential claim. On June 27, 1997, the Cochrans were discharged in bankruptcy without the possible malpractice claim ever being scheduled.

On December 31,1997, plaintiff sued the defendant in the State Court of Fulton County after her discharge in bankruptcy. On February 10, 1998, the defendant answered the suit without raising the defense of judicial estoppel. On October 16, 1998, defendant filed its motion for summary judgment, raised for the first time the defense of judicial estoppel, and attached a copy of plaintiff’s bankruptcy petition to its motion, showing that the malpractice claim had not been scheduled in the bankruptcy petition.

On January 25,1999, the trial court granted the motion for summary judgment on the defense of judicial estoppel. On February 15, 1999, plaintiff moved for reconsideration of the grant of summary judgment based on judicial estoppel and submitted a copy of a motion to reopen the bankruptcy petition dated February 10, 1999, which scheduled the malpractice action. An extension of time to file the notice of appeal was granted. On March 30, 1999, the trial court denied the motion for reconsideration, because the amended bankruptcy petition was untimely.

(a) The harsh federal doctrine of judicial estoppel came into Georgia law through Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454 (442 SE2d 265) (1994), in which the plaintiff had filed bankruptcy and scheduled the defendants, their former counsel; after the reorganization had been approved, plaintiff sued its lawyers for pre-bankruptcy malpractice to reach their errors and omissions coverage as an asset on claims intentionally not scheduled in the bankruptcy petition. Judicial estoppel was applied to prevent the use. of intentional self-contradiction to obtain unfair advantage for the plaintiff against its former lawyers. Id. at 455.

Thus, the essential function and justification of judicial estoppel is 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 does not require reliance or prejudice before a party may invoke it. These cases involve primarily the obligation placed upon the debtor in a . . . bankruptcy case to file a list of assets in which [the debtor] must disclose any litigation which might arise from pre-bankruptcy matters. Compliance with disclosure requirements is essential to maintaining a bankruptcy case. In . . . light of the stringent disclosure requirements under [the bankruptcy law], 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. . . . While plaintiff attempts to excuse [her] failure to list the claims against defendant [ ] in the bankruptcy court by invoking the theory that [she] exercised “reasonable diligence” in investigating the potential causes of action which had been brought to [her] attention, this begs the question since plaintiff’s knowledge of even a potential claim was subject to the disclosure requirements and provide [s] a sufficient basis for the application of judicial estoppel [where she was aware of a potential claim]. [Here we can] accept the suggestion that plaintiff’s argument that circumstances are such as to warrant a deliberate change of position by [her] on the issue of whether [she] has claims against defendant[ ] without imposition of judicial estoppel [because her bankruptcy lawyer told her that she had no cause of action]. Cases adopting such a theory involve parties who[, as here,] are able to demonstrate how they were actively misled by the information available to them. Here, any deficiency in plaintiff’s perceptions is [not] shown as arising from the press to complete the process within the bankruptcy court in a time frame which was advantageous to plaintiff [but to the absence of discoverable information that there existed a foreign object in her spine that was caused by the defendant as a potential medical malpractice claim].

(Citations and punctuation omitted.) Id. at 455-456.

The facts and circumstances of this case raise for the first time what is a justifiable failure to schedule so as to avoid the doctrine of judicial estoppel and what constitutes a potential claim also for purposes of judicial estoppel. These issues, from the facts and circumstances of this case, should have been considered by the trial court in determining whether or not to reconsider its grant of summary judgment in the first place and whether or not the motion for summary judgment had been appropriately granted.

In this case, plaintiff was aware that there was a possible problem with her spine, because there was information of a foreign body in her spine of unknown origin, but plaintiff was uncertain if there was a potential claim and sought guidance from her bankruptcy counsel who told her that this was not a potential claim that had to be scheduled. However, she had no actual knowledge that the foreign body constituted a tort action as a real potential claim until the personal injury lawyer advised her after her discharge in bankruptcy and the diagnosis by the radiologist in Athens confirmed the existence of a foreign body in her spine. Even then, there was no potential claim until the foreign body was identified and a potential defendant identified, who could be potentially liable. A fact question exists as to whether a potential cause of action arose with the October 1997 identification of the foreign body as a catheter tip or at an earlier date, starting the statute of limitation running by discovery of the injury. This identification of the catheter tip occurred over seven months after the filing of the bankruptcy complaint and three months after the discharge in bankruptcy.

Unlike the investigation of ordinary tort claims, this case required repeated and expensive diagnostic medical testing, medical expert opinion, and sophisticated legal advice from a medical malpractice lawyer to determine: (1) injury, i.e., presence of the catheter tip in her spine; (2) causation, i.e., catheter tip breaking off during the epidural catheterization at delivery; and (3) violation of a standard of care by physicians, technicians, or hospital personnel during delivery. Prior to these determinations, there existed no potential tort claim for medical malpractice.

Thus, all of these factors should have been considered by the trial court in reconsidering its grant of summary judgment under the totality of the circumstances, because the trial court should have recognized that this case involved issues of first impression that did not fit prior opinions.

(b) The defendant initially raised the affirmative defense of the statute of limitation in its answer and made this defense one of the two grounds for summary judgment; however, apparently realizing that the discovery rule raised factual issues as to discovery for jury determination, the defendant withdrew its motion on this ground for summary judgment and proceeded with the defense of judicial estoppel only. See Spivey v. Whiddon, 260 Ga. 502, 504 (397 SE2d 117) (1990).

If a plaintiff cannot be deemed to have discovered an injury so that they are under a duty of reasonable care to investigate and determine the cause of the injury for purposes of the statute of limitation as a fact question for the jury, then the same standard should apply to determine when a potential claim should be known for purposes of scheduling for bankruptcy, giving rise to judicial estoppel for failure to do so. Under OCGA § 9-3-72, a one-year statute of limitation after the discovery of a foreign body negligently left in the plaintiffs body was created. The General Assembly recognized the “mischief needing correction,” which was “the injustice of a claim being barred before its existence became known to the injured party.” Spivey v. Whiddon, supra. Thus, the statute of limitation as to negligently leaving a foreign body in the plaintiff does not begin to run until two years after the negligence occurred or in the exercise of ordinary care the plaintiff discovered or should have discovered the object causes the statute to begin to run, whichever is later. Id. at 504. See also Abend v. Klaudt, 243 Ga. App. 271, 272-273 (1) (531 SE2d 722) (2000). Whether the plaintiff exercised ordinary care to discover the foreign body is a mixed question of law and fact for a jury. Id. at 273. Thus, the General Assembly created a public policy that a right of action cannot be lost without knowledge of such right. Id. Until the discovery of a foreign body in a plaintiff, even the statute of repose does not commence to rim. Id. at 275-276 (2).

However, the discovery rule as to when a plaintiff should realize that they have a potential cause of action against someone for injury, causing the statute of limitation to begin to run, should have equal application to the doctrine of judicial estoppel, i.e., until the plaintiff is aware of or reasonably should be aware of a potential claim, because it is patently unfair to create an absolute bar to liability for lack of discovery of the potential claim without reaching the merits. There should be no duty to schedule the claim on the bankruptcy petition until the cause of action has been discovered as a potential claim. To allow judicial estoppel for failure to schedule a potential claim in bankruptcy prior to the claim having been discovered is to perpetuate an injustice as grave as the General Assembly sought to correct as a matter of public policy through the discovery rule.

“The bankruptcy schedule [ ] clearly required disclosure of the present claims, specifically requiring disclosure of all contingent and unliquidated claims of any nature including . . . counterclaims of the debtor and rights to setoff claims.” (Punctuation omitted.) Byrd v. JRC Towne Lake, 225 Ga. App. 506, 507-508 (484 SE2d 309) (1997) (physical precedent only). This holding points out definite claims that are both known and vested; these are not theoretical possibilities as claims. Id. If Georgia courts impose the federal doctrine of judicial estoppel, then such imposition ihust be done in a manner compatible with Georgia public policies.

In this case, the plaintiff did not know that there existed a potential malpractice claim until after her discharge in bankruptcy when in October 1997 she learned that there was a catheter tip in her spine. That the plaintiff was earlier aware of the presence of a foreign body in her spine is not determinative of her knowledge of a potential claim. A bankrupt cannot disclose and schedule a claim of which the bankrupt, as here, is unaware. See Southmark Corp. v. Trotter, Smith & Jacobs, supra at 455-456. The case law in Georgia depends upon the knowledge and appreciation of the potential cause of action by the plaintiff-bankrupt and the intentional decision not to schedule such potential claim to gain an unfair advantage for the doctrine of judicial estoppel to apply. In this case, there exists a material issue of fact regarding plaintiff’s knowledge of a potential claim prior to and during the pendency of the bankruptcy action for jury determination along with the defense of the statute of limitation. The trial court in exercising its sound discretion to reconsider the grant of summary judgment should have considered these factors raised by the facts and circumstances of this case, as well as evidence of efforts to amend the bankruptcy petition.

(c) Plaintiff contends that the trial court abused its discretion in failing to set aside the grant of the motion for summary judgment to consider evidence that plaintiff had sought to set aside the discharge in bankruptcy and to reopen the action so that she could amend the petition to schedule the malpractice claim. The trial court abused its discretion in not setting aside its order for the foregoing reasons, as well as in not allowing the plaintiff to produce evidence that the bankruptcy was being reopened and the claim properly scheduled; such action compels the plaintiff to do what they should have done for the benefit of creditors, eliminating the basis for judicial estoppel from taking inconsistent positions in different courts and does not permit the defendant to hide from liability on the merits for any medical malpractice based on some theoretical misuse of the court systems that is readily correctable without creating an injustice equally as grave. If the affront to justice through inconsistent positions in different courts can be corrected at any time, then the trial court to assure that justice is not denied anyone — plaintiff, defendant, or bankruptcy creditors — should permit such correction of the bankruptcy petition to occur to protect the integrity of the entire judicial system. “Let justice prevail or the heavens fall.”

The defense of judicial estoppel is not designed to protect the litigant from their own liability on the merits, but to protect the integrity of the judiciary from injustice from intentional manipulation by allowing a plaintiff to take self-contradictory and inconsistent positions in one court in order to obtain an unfair advantage in another forum provided for suitors seeking justice. See Southmark Corp. v. Trotter, Smith & Jacobs, supra at 455; Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996). Therefore, the ends of justice are always served by allowing the bankruptcy action to be amended or reopened to schedule a potential claim as an asset of the bankruptcy estate rather than applying the doctrine of judicial estoppel blindly as a bar to liability without an adjudication on the merits. See Johnson v. Trust Co. Bank, supra; see also Jowers v. Arthur, 245 Ga. App. 68 (537 SE2d 200) (2000). Such claim as an asset, unless abandoned by the bankruptcy court to the plaintiff, would inure to the benefit of plaintiff’s creditors, and a trustee in bankruptcy would be substituted for the plaintiff in this action; therefore, innocent creditors would wrongfully suffer from blindly applied judicial estoppel in the name of justice. See Jowers v. Arthur, supra at 70; United Technologies Corp. v. Gaines, 225 Ga. App. 191, 192 (483 SE2d 357) (1997).

(d) Further, under Georgia law a personal injury claim as a chose in action cannot be assigned to anyone else; however, our courts have held that federal bankruptcy law preempts state public policy vesting such action in the trustee in bankruptcy. OCGA § 44-12-24; Spoon v. Johnson, 247 Ga. App. 754 (545 SE2d 328) (2001); Denis v. Delta Air Lines, 248 Ga. App. 377 (546 SE2d 805) (2001). When a bankruptcy is filed, the trustee in bankruptcy becomes the real party in interest, but Georgia public policy prohibits the trustee from assigning to the plaintiff their own personal injury action. United Technologies Corp. v. Gaines, supra. However, the trustee can abandon under federal bankruptcy law the personal injury claim to the plaintiff. Denis v. Delta Air Lines, supra at 380. Thus, in granting summary judgment to the plaintiff’s claim on the basis of judicial estoppel, we create a res judicata issue as to the trustee’s derivative claim against the tortfeasor granting the tortfeasor immunity to liability when this doctrine is to prevent injustice. The creditors in bankruptcy, whom we claim to seek to protect, and the plaintiff lose and the defendant wins. Judicial estoppel should not be a defense in bar but a defense in abatement, causing the action to be dismissed without prejudice and refiled after it has been scheduled in bankruptcy court with the trustee as the real party in interest or the claim abandoned.

Decided October 5, 2001

Hicks, Massey & Gardner, Frederick V. Massey, Robert M. Gardner, Jr., for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Johnathan T. Krawcheck, for appellee.

Thus, judicial estoppel has not been applied when the plaintiff opens and amends the bankruptcy petition after discharge to schedule the tort claim. When the bankruptcy petition has been amended to set forth the tort claim, such bankruptcy petition and the tort complaint no longer are inconsistent so that the doctrine of judicial estoppel no longer has applicability, even if the plaintiff was forced to do what was right through judicial action. See Jowers v. Arthur, supra at 70; Johnson v. Trust Co. Bank, supra at 652.

Further, as a matter of sound public policy a physician, as a professional, should not escape professional liability for medical malpractice except as provided within the defenses normally available under malpractice jurisprudence, because each such finding of liability for professional negligence protects the public from failure to adhere to the ordinary standard of care by physicians in general.

       235 Ga. App. 444 (509 SE2d 707) (1998).

       Id. at 445.

       Id. at 445-446 (1).

       Id. at 446 (1).

       See Reagan v. Lynch, 241 Ga. App. 642, 645 (524 SE2d 510) (1999).

       245 Ga. App. 729 (538 SE2d 816) (2000).

       Supra, 241 Ga. App. at 645 (Barnes, J., concurring specially).

       (Punctuation omitted.) Harper, supra, 245 Ga. App. at 732 (1).

       Id. at 733 (1).

       Id.

       See Adams v. Seay, 62 Ga. App. 589, 591-592 (9 SE2d 117) (1940) (motion for reconsideration is addressed to the sound discretion of the court). But see Harper, supra, 245 Ga. App. at 732-733 (1).

       An important fact omitted from the summary of the case in the opinion, which was tried before me as the trial judge, was that the reorganization barred defendant-former counsels’ substantial unpaid fees that were scheduled in the bankruptcy and in the malpractice action could not be used in either counterclaim or set-off by the defendants. In the absence of such facts from the opinion but in the record, this may only be inferred from the opinion. It is interesting to note that no other judicial estoppel case has the defendant appear in the bankruptcy in any capacity and then as a defendant in a subsequent suit, which was an important factor in the federal cases.

        Southmark Corp. v. Trotter, Smith & Jacobs, supra at 455-456 (awareness of legal malpractice claims prior to bankruptcy); see also Harper v. GMAC Mtg. Corp., 245 Ga. App. 729, 731 (1) (538 SE2d 816) (2000) (pending action listed on bankruptcy schedule as an action for injunction and declaratory relief but made no mention of damages); Smalls v. Walker, 243 Ga. App. 453, 456-457 (2) (532 SE2d 420) (2000) (intentional failure to schedule personal injury claims arising prior to bankruptcy); Reagan v. Lynch, 241 Ga. App. 642, 643 (524 SE2d 510) (1999) (breach of contract arising prior to bankruptcy not scheduled); Wolfork v. Tackett, 241 Ga. App. 633 (526 SE2d 436) (1999) (whole court) (When a tort claim arises after a Chapter 13 filing, there is a duty to amend and file, which was not done.); Byrd v. JRC Towne Lake, supra at 506 (aware of the injuries from a car collision prior to filing for Chapter 13 but intentionally omitted the claim); Hyre v. Denise, 214 Ga. App. 552, 556 (9) (449 SE2d 120) (1994) (intentional failure to schedule potential pre-bankruptcy tort claims).

       Rough translation of the Latin motto in the courtroom of the Supreme Court of Georgia.

        McBride v. Brown, 246 Ga. App. 149 (538 SE2d 863) (2000); Jowers v. Arthur, supra; Smalls v. Walker, supra at 456 (2); Wolfork v. Tackett, supra at 634 (whole court); Clark v. Perino, 235 Ga. App. 444, 446 (1) (509 SE2d 707) (1998); Johnson v. Trust Co. Bank, supra at 651-652.

        Keenan v. Plouffe, 267 Ga. 791, 793-794 (2) (482 SE2d 253) (1997); Davis v. Stover, 258 Ga. 156 (366 SE2d 670) (1988).


text:
    A01A1099.
    COLKITT v. THE STATE.
    (555 SE2d 121)
   Pope, Presiding Judge.

Robert Leon Colkitt appeals following his conviction on two counts of armed robbery. We affirm.

Viewed in the light most favorable to the verdict, the evidence showed that on June 16, 1999, a man entered a music shop in the Lovejoy Station shopping center in Clayton County. There were no other customers in the store, and only one employee, Christopher Fratt, was working. Fratt recognized the man as one of the store’s regular customers, and at the trial, he identified the man as Colkitt. Colkitt walked up to the counter, handed Fratt an empty red and white bag, pointed a gun at him and directed him to put money in the bag. After Fratt placed about $600 in the bag, Colkitt told him to walk to the back of the store. Colkitt then exited the store, and Fratt called the police. Fratt later picked Colkitt’s picture out of a photo lineup.

On August 3, 1999, a man came into a sandwich shop at the same shopping center. Two employees, Yvonne Wood and Wanda Beem, were working in the store at the time. The man walked up to the counter, put a white bag on the counter and told Wood to give him all her money. Both Wood and Beem testified that they thought the man had a gun under the bag. The bag appeared to be in the shape of a gun, and the man kept his hand under the bag and pointed it. Wood said that she felt the man would kill her if she did not hand him the money. The man told Beem to go to the back of the store and, after Wood gave him the money, directed her to the back of the store as well.

The man then left the store. Wood got a piece of paper and ran after him. She saw him get into a white or tan Pontiac, “like a Sun-bird,” and drive off. Wood was able to get the license tag number and give it to police.

Shortly thereafter, a Clayton County police officer observed an individual in a brown-colored “Pontiac Sunfire” exiting the Lovejoy Station shopping center at a high rate of speed and running a stop sign. A couple of minutes later, he received a call notifying him of the sandwich store robbery and a second call describing the perpetrator’s car. The officer turned around and began to search for the car he had just seen. When he was unable to locate it, he went to the address listed for the license number Wood gave police. At that address, Colkitt was taken into custody and taken to the sandwich shop for identification.

When police brought Colkitt to the sandwich shop, Wood identified him as the man who committed the robbery. She also identified Colkitt at trial as the perpetrator. Beem, however, was unable to identify Colkitt either the day of the robbery or later at trial as the man who robbed the sandwich shop.

Colkitt was tried for both robberies in the same trial and convicted of armed robbery in each instance.

1. Colkitt asserts that there was insufficient evidence to support his conviction for armed robbery at the sandwich shop because there was no evidence that the perpetrator ever showed a weapon or stated that he had a weapon.

Armed robbery occurs “when, with the intent to commit theft, [a person] takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. . . .” (Emphasis supplied.) OCGA § 16-8-41 (a). This language contemplates that an armed robbery may be committed when the weapon is concealed. McCluskey v. State, 211 Ga. App. 205, 207 (2) (438 SE2d 679) (1993). Thus, the presence of a gun or other weapon may be proved by circumstantial evidence, and it is not necessary that the victim actually see the weapon. Brabham v. State, 240 Ga. App. 506 (1) (524 SE2d 1) (1999).

Nevertheless, “[s]ome physical manifestation is required or some evidence from which the presence of a weapon may be inferred [.] [Cit.] . . McCluskey v. State, 211 Ga. App. at 207 (2). The test is “whether the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon was being used, regardless of whether the victim actually saw the weapon.” (Citations and punctuation omitted.) Prins v. State, 246 Ga. App. 585, 586 (1) (539 SE2d 236) (2000). See also Moody v. State, 258 Ga. 818, 820 (1) (375 SE2d 30) (1989).

Here, both sandwich shop victims testified that the man placed a bag on the counter and demanded money while concealing his hand beneath the bag, and both victims testified that they saw the shape of a gun beneath the bag. This evidence supported a finding that the victims were under a reasonable apprehension that the man had a gun. See Turner v. State, 237 Ga. App. 642, 644 (1) (516 SE2d 343) (1999). Compare Bradford v. State, 223 Ga. App. 424 (477 SE2d 859) (1996) (no evidence that weapon used where no weapon seen and no evidence that defendant concealed his hand). And Wood positively identified Colkitt as the man who robbed her that day. We find, therefore, that the evidence was sufficient to sustain Colkitt’s conviction for armed robbery under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Colkitt also asserts that the trial court erred in its supplemental charge after the jury requested “a clearer definition of armed robbery versus robbery.” He argues that it was error for the trial court not to recharge that an indictment is not evidence and on the presumption of innocence and reasonable doubt in addition to the recharge on robbery and armed robbery. He also contends that both the original charge and the supplemental charge failed to follow the pattern jury instructions.

We find no merit to Colkitt’s arguments. Following the trial court’s initial charge to the jury, the court asked counsel if they had any objections to the charge. Colkitt’s counsel replied, “No, Your Honor.” Then in response to the jury’s question, the court indicated that it would reread the definitions of armed robbery and robbery as previously charged and asked if counsel had any objection. Once again, Colkitt’s attorney indicated that there was no objection. After first admonishing the jury not to give undue emphasis to the supplemental charge over the initial charge, the trial court then recharged the jury on the definitions of armed robbery and robbery. At the conclusion of the recharge, Colkitt’s counsel replied to the trial court’s request for any objections, “Your Honor, my only objection would just be to singling out or taking a portion of the charge and to recharge the jury only on the weight to that portion of the charge.”

The state contends that Colkitt has waived his objections to the charge by failing to properly object. A defendant may waive objections to a charge where he fails to object in response to the court’s inquiry: “The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances, as where defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charge as given.” (Citation and punctuation omitted.) Bailey v. State, 246 Ga. App. 337 (540 SE2d 298) (2000). We agree with the state that Colkitt has waived his objections to both the initial charge and the recharge on the ground that the trial court failed to track the pattern jury instructions because he failed to object on that ground. Rather, Colkitt’s counsel affirmatively stated that he had no objection to the initial charge and no objection to the trial court’s plan to reread that charge in response to the jury’s question.

Nevertheless, we will review a charge, regardless of whether an objection was made, if a substantial error in the charge was harmful as a matter of law. OCGA § 5-5-24 (c). “In order to satisfy this standard, appellant must show that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial.” (Citations and punctuation omitted.) Miller v. State, 240 Ga. App. 18, 20 (3) (522 SE2d 519) (1999). We find that Colkitt has failed to meet this standard.

Moreover, it is within a trial court’s discretion whether to charge the jury on areas of the law not covered by the jury’s question so long as the jury is not misled:

Where a jury, which has been fully and properly charged, requests a recharge on a specific question, it is within the discretion of the trial court whether to recharge entirely or to recharge only on the specific question. It is not error to recharge only on the specific question so long as the recharge taken alone does not leave an erroneous impression in the minds of the jury.

(Citations, punctuation and footnote omitted.) Peake v. State, 247 Ga. App. 374, 375 (1) (545 SE2d 309) (2000). After examining the initial charge and the recharge, we find no error.

Decided October 5, 2001.

Howard J. Weintraub, for appellant.

Robert E. Keller, District Attorney, Jack S. Jennings, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.