*1 сhallenge in this case. Because the constitutional was not raised in presents nothing appel- the trial late this enumeration of error for (1) Maynard [Cits.]” App. of Ga., review. v.State 217 Ga. (457 253) (1995). SE2d Appellees’ request appeal penalty hereby 5. for a frivolous is. denied.
Judgment J., Johnson, J., P. concur. affirmed. 5, 1996
Decided November Reconsideration dismissed November pro Brooks,
James se. Attorney George Shingler, Deputy Bowеrs, General,
Michael J.
P.
Attorney
Attorney
General,
Jones,
John C.
Senior
General,
Assistant
Stephen
Tinkler, Jr.,
Law
D.
William
Tinkler, Jr.,
William P.
Offices of
appellеes.
Morrison, Jr.,
for
THE
MORGAN v.
STATE.
(478
781)
SE2d
Beasley, Chief Judge.
(466
658)
Morgan
(1996),
State,
v.
SE2d
appellant’s judgment
affirmed
of conviction of DUI and several traffic
Supreme
offenses. The
decision in
Court
certiorari and reversed our
(476
747)
Morgan
State,
Robert W. Ralph Bowden, Jr., T. Solicitor, Delan, Lawrence W. How- Cliff ard, Solicitors, Assistant
A96A1004. JOHNSON v. TRUST COMPANYBANK. Presiding Judge. . POPE, July 18, 1993, On James Johnson was shot at an ATM оwned defendant Trust Bank. Four later, months Chapter bankruptcy, doing filed for so failed to list of his bank- discharged plain- Subsequently, estate. plaintiff filed the Thereafter, and closed his tiffs debts summary judg- moved action tort ground action was barred ment on the poten- failed to schedule *2 bankruptcy against The trial court. with the defendant tial tort claim Concluding that the agreed motion. and court erred, reverse. trial court estoppel judicial justification is
“[T]he of function and essential a means of prevent self-contradiction the use of intentional to seeking advаntage provided obtaining for suitors in a forum unfair protect purpose justice. primary the liti- is not to of the doctrine (Citation judiciary.” integrity gants, protect and the of the to omitted.) Corp. Jacobs, Trotter, & punctuation Southmark “The doctrine ... is manipulate against the court tо directed those who system through assertion of Blue Cross in ing mond and judicial proceedings [and] In the instant mockery justice [through] Assoc., 44 F3d &c. of of omitted.) Original Appalachian Alabama, case, although 929-930 is it is inconsistent undisputed to prevent parties 1995); McKinnon v. pleadings.” [8] Artworks that see plaintiff from mak- v. S. Dia- any failing tort claim he the initial mistake of to schedule against potential in asset, there is unrefuted evidence defendаnt as a any concerning plaintiff given the that information record spe- attorney bankruptcy Plaintiff also and the trustee. claim to his cifiсally potential of Financial referred to the claim the Statement And, the he filed the court. unlike Affairs of its determination in those casеs cited that the doctrine of the instant case became aware the dissent
judicial applicable, plaintiff estoppel when
that his sought granted per- scheduled, and was had not reopen and case mission from the circumstances, Under such amend his schedules to include the claim. intentionally plaintiff that it cannot be said аs a matter of law system, attempted or that he and deceive the court mockery system attempting inconsis- to make a of was tent рleading. successfully
Furthermore, has amended bankruptcy petition include advantage clearly gained
potential ruptcy asset, unfair bank- has Any recovery defendant will inure he obtains from plaintiff’s estate, turn, the credi- and in of benefit asserted claims to the estate’s assеts. Due to the tors who Chapter acceptance and its court’s decision to amendment to the schedules cannot be said that case with that also filed plaintiff’s court is in the trial successfully unequivocally “inconsistent with one asserted (Citation, emphasis prior proceeding.” [him] in a indentation and FSupp. Ins. Pittman v. Massachusetts Mut. Life (S.D. 1995). By necessity, plaintiff’s 4] [3, Ga. 1386-1387 bankruptcy petition case amended and the fact they rеopened pursue any was might so as to allow creditors to claims negates any contrary. have, conclusion judicial applying сourt to bar trial plaintiff’s erred in tort action Beasley, C. Blackburn JJ., Andrews, Smith, JJ., dissent.
Birdsong, disqualified. J.,P. Judge, dissenting.
Andrews, respectfully dissent, as the record reveals Johnson did succеss- fully manipulate complete discharge and obtain scheduling potentially his debts without valuable asset. *3 summary after Not until Trust moved for judicial еstoppel based on did file a Johnson motion court to affi- Armed with showing attorneys davits he told his this about attorneys persuaded it, but the failed schedule Johnson the bank- his motion and him sched- allow to amend his prior original discharge, list an ules to this claim as asset. But to his attorneys nothing Johnsоn and his his told the about trustee planned personal injury though claim, even he stated he had been damage process. shot at ATM and suffered his car in the significant oath, This that Johnson made no effort to threatened the omission under combined with the fact
correct omission until injury viability рersonal gave of his trial apply judicial estoppel. court more than sufficient reason to judicial “The doctrine of ‘is directеd who those the court positions [Cit.]” judicial proceedings.’ assertion of (Emphasis supplied.) Chrysler Corp. Rebhan, 1257, Credit 842 F2d (11th 1988). misrepresentation 1261 Cir. Jоhnson’s discharged begin court allowed him to be from his debts and anew Company. with an unencumbered asset: the claim See Trust (P.R.), Payless 570, Inc., Wholesаle Distrib. v.Alberto Culver F2d 989 (1st 1993). Having “caught” 571 Cir. this failure to include bankruptcy estate, in his Johnson informed the
653 shifting His his case. after that court closed it nine months court of exactly “playing fast and loose with the kind of constitutes pre- judicial estoppel doctrine which the the courts” vent. v. Zurich Ins. Allen “ 1982). (4th pаrty a cer- a assumes 1162, Cir. ‘Where F2d 1166 667 maintaining legal proceeding, and succeeds in a tain may simply position, changed, thereafter, his interеsts not contrary position.’ 680, Wakelee,156 U. S. Davis v. assume 578)] (1895).” [(15 supplied.) (Emphasis In the LE SC Cassidy, 892 F2d Thomas V. Matter of applies here because John- with full force doctrine inconsistently degree to offend the and manner “acted son raising” preclude judicial process properly him from now Company. Ward, PLC v. Guinness uphold 1992); supra. would, therefore, Rebhan, accord remedy appropriate disciplinary the trial court’s аs an notwithstanding actions, last-minute effort to “come Johnson’s clean” and make amends to Judge Judge
I am authorized to state that join in this dissent. III, Thurstоn, Jr., Curtis A.
Maurice J. Bernard Copeland, III, Webb, Carlock, Stair, Semler & Frederick M. Valz Huray, Scott D. v. THE STATE. GAMBLE
POPE, Presiding Judge. jury Eugene Gamble was convicted Melvin trafficking appeal, in cocaine. On defendant contends that the evi- support his conviction and that he was enti- dence was insufficient to *4 the trial court erred in tled tо a directed verdict. He also contends failing Finding suppress motion to evidence. contentions, merit to of these we affirm. verdict, the evidence shows that
Construed to Wright (Ferguson, defendant drove himself and three co-defendants and Jackson) Waycross, Georgia in a Miami, Ford frоm Florida Mustang. Waycross, Pontiac Prix defendant took a rented Gran pretenses Tonga Brown, whom he met several under false from going Brown, store, he had told earlier. Instead of to a local weeks