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                                  Appellate Court                          Date: 2017.08.17
                                                                           12:57:51 -05'00'




                      Barnes v. Lolling, 2017 IL App (3d) 150157



Appellate Court       JERRY L. BARNES Plaintiff-Appellant, v. DANIEL R. LOLLING
Caption               and UNITED CONTRACTORS MIDWEST, INC., Defendants-
                      Appellees.



District & No.        Third District
                      Docket No. 3-15-0157



Rule 23 order filed   May 18, 2017
Motion to publish
allowed               June 27, 2017
Opinion filed         June 27, 2017



Decision Under        Appeal from the Circuit Court of Fulton County; No. 13-L-18; the
Review                Hon. Steven R. Bordner, Judge, presiding.



Judgment              Affirmed.


Counsel on            Patrick E. Halliday and Ronald E. Halliday, of Doc Halliday Law, of
Appeal                Peoria, for appellant.

                      Matthew S. Hefflefinger and Craig L. Unrath, of Heyl, Royster,
                      Voelker & Allen, of Peoria, for appellees.
     Panel                    PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
                              court, with opinion.
                              Justices McDade and Schmidt concurred in the judgment and opinion.


                                               OPINION

¶1         Plaintiff Jerry L. Barnes, a former bankruptcy debtor, sued defendants Daniel R. Lolling
       and his employer, United Contractors Midwest, Inc. (United Contractors), for personal injuries
       Barnes allegedly sustained during an automobile accident. The accident took place on October
       7, 2011, after Barnes had filed her Chapter 13 bankruptcy (11 U.S.C. § 1301 et seq. (2006))
       petition and while the bankruptcy proceeding was pending. Barnes did not disclose her
       potential cause of action against the defendants to the bankruptcy trustee or schedule the cause
       of action as an asset of the bankruptcy estate. Barnes filed the instant personal injury claim on
       October 7, 2013, two years after the accident and approximately five months after the
       bankruptcy court had discharged Barnes’s debts and closed the bankruptcy case.
¶2         The defendants moved for summary judgment, arguing that (1) Barnes’s personal injury
       claim was barred under the doctrine of judicial estoppel because Barnes failed to disclose the
       claim during the bankruptcy proceedings and (2) Barnes lacked standing to sue because the
       personal injury action accrued while the bankruptcy case was pending and was therefore the
       property of the bankruptcy estate. The trial court ruled that the elements of judicial estoppel
       had been met and granted summary judgment for the defendants on that basis. This appeal
       followed.

¶3                                                 FACTS
¶4         On February 8, 2008, Barnes and her husband filed for Chapter 13 bankruptcy protection to
       resolve their personal and business debts. Barnes completed an individual debtor petition in
       her name and provided all the required information. She appeared in bankruptcy court on only
       one occasion at the beginning of the case. Sometime in 2008, the bankruptcy court placed
       Barnes and her husband on a five-year debt repayment plan. Barnes and her husband made
       payments of $500 per month under the plan until they received a discharge from bankruptcy on
       April 11, 2013. During that five-year period, Barnes did not file any bankruptcy pleadings,
       seek any modifications to the repayment plan, or inform the bankruptcy court of any new
       assets, liabilities, or diminished earnings.
¶5         The bankruptcy court discharged Barnes’s debt and closed the bankruptcy case in April
       2013. The Trustee’s Final Report and Account showed that, over a period of approximately
       five years, Barnes paid a total of $30,000 to her creditors. Barnes had $92,164.70 in unsecured
       debt discharged in bankruptcy.
¶6         On October 7, 2011, approximately 18 months prior to the discharge of her bankruptcy,
       Barnes was involved in a motor vehicle accident with the defendant, Daniel Lolling. At the
       time of the accident, Lolling was purportedly working within the scope of his employment
       with the defendant, United Contractors. Barnes retained counsel to prosecute her personal
       injury claims of negligence against Lolling and United Contractors. Eighteen days after the
       accident, Barnes’s counsel wrote to the defendants’ insurer stating that (1) he would be


                                                   -2-
       representing Barnes in her claim for personal injuries against Lolling and United Contractors
       and (2) he anticipated that Barnes’s damages from the accident “could easily exceed $50,000”
       in medical bills “plus lost wages.” The defendants disagreed with Barnes’ allegations, disputed
       her claim that Lolling was negligent, and denied liability.
¶7         On October 7, 2013, six months after the bankruptcy discharge and two years after the
       accident, Barnes filed the instant personal injury action against Lolling and United
       Contractors.1 In her complaint, Barnes alleged that, as a result of the accident, she had suffered
       severe injuries, incurred medical expenses, and had lost the capacity to earn sums of money in
       the future that she would have been able to earn had it not been for the accident. She claimed
       damages in excess of $50,000. On November 22, 2013, the defendants filed an answer to
       Barnes’s complaint in which they denied liability for the accident and asserted an affirmative
       defense of contributory negligence against Barnes. Barnes filed a timely answer to the
       affirmative defense in which she denied contributory negligence.
¶8         At the conclusion of discovery, the defendants moved for summary judgment on two
       grounds. First, the defendants argued that Barnes lacked standing to bring the suit because the
       personal injury claim had accrued before the bankruptcy proceedings were closed and was
       therefore the property of the bankruptcy estate. Second, the defendants argued that Barnes’s
       claim was barred under the doctrine of judicial estoppel because Barnes had failed to disclose
       the claim as a potential asset during the bankruptcy proceedings.
¶9         Barnes responded to the defendants’ summary judgment motion, attaching a supporting
       affidavit. In her sworn affidavit, Barnes asserted, inter alia, that (1) she did not inform the
       attorney representing her in the personal injury action that she had previously filed a Chapter
       13 bankruptcy petition and was making monthly payments as required by the bankruptcy plan,
       (2) she did not know that she had a duty to report the automobile accident to the bankruptcy
       court, (3) as a result, she did not report the automobile accident to the bankruptcy court or
       inform her bankruptcy attorney of the accident, (4) she did not file any documents in the
       bankruptcy court after the accident, and (5) she did not intend to deceive the bankruptcy court.
¶ 10       The trial court granted summary judgment in favor of the defendants on the basis of
       judicial estoppel. The court's written order states:
               “Cause coming on for hearing defendants’ motion for summary judgment, parties
               appearing by counsel and [Barnes] appearing in person, in the court hearing argument,
               it is ordered that the elements of judicial estoppel are met, and defendants' motion for
               summary judgment is granted.”
       The record on appeal does not include the report of proceedings or a transcript of the trial
       court’s hearing on the motion for summary judgment. Accordingly, any statements that trial
       court may have made from the bench in issuing its summary judgment order have not been
       made available to this court for review.
¶ 11       This appeal followed.




          1
            Barnes sued Lolling for negligence and based her claim against United Contractors on an agency
       theory.

                                                    -3-
¶ 12                                            ANALYSIS
¶ 13                                            1. Standing
¶ 14       As noted above, the trial court granted summary judgment for the defendants in this case
       on the basis of judicial estoppel. It did not address the defendants’ alternative argument that
       Barnes lacked standing to bring the instant personal injury action. However, this court is not
       bound by the trial court's reasoning and may affirm on any basis supported by the record,
       regardless of whether the trial court based its decision on that basis. Mutual Management
       Services, Inc. v. Swalve, 2011 IL App (2d) 100778, ¶ 11; see also Kubichek v. Traina, 2013 IL
       App (3d) 110157, ¶ 28 n.3 (“we review the trial court’s judgment, not its rationale, and we may
       affirm on any basis that the record supports”); People v. Reed, 361 Ill. App. 3d 995, 1000
       (2005). We hold that Barnes lacked standing to bring the instant claim for her own benefit after
       the bankruptcy proceeding was closed.
¶ 15       A Chapter 13 bankruptcy estate encompasses all property, including any legal claims
       acquired by the debtor after the petition is filed and before the case is closed. See 11 U.S.C.
       §§ 541(a)(1), 1306(a)(1) (2012); In re Jones, 657 F.3d 921, 927 (9th Cir. 2011); In re Willett,
       544 F.3d 787, 791 n.3 (7th Cir. 2008); In re Waldron, 536 F.3d 1239, 1241 (11th Cir. 2008);
       Cable v. Ivy Tech State College, 200 F.3d 467, 472-74 (7th Cir. 1999), overruled on other
       grounds, Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013).2 Debtors have a continuing duty to
       schedule newly acquired assets while the bankruptcy case is open. Waldron, 536 F.3d at 1244.
       Unless the bankruptcy court orders otherwise, property of the estate that is not expressly
       abandoned by the bankruptcy trustee or administered in the bankruptcy case “remains property
       of the estate.” 11 U.S.C. § 554(d) (2012).3 Undisclosed assets, including undisclosed legal
       claims accruing while the bankruptcy is ongoing, remain property of the estate even after the
       bankruptcy case is closed. In re Easley-Brooks, 487 B.R. 400, 409 (Bankr. S.D.N.Y. 2013);
       see An-Tze Cheng v. K&S Diversified Investments, Inc. (In re An-Tze Cheng), 308 B.R. 448,
       461 (B.A.P. 9th Cir. 2004) (ruling that, under section 554(d), property of a Chapter 11 estate
       that is not scheduled or otherwise administered by the time the case is closed “remains property
       of the estate forever”). A closed bankruptcy proceeding may be reopened for the purpose of
       scheduling and administering previously undisclosed legal claims or other assets of the estate.


           2
             Section 541 of the Bankruptcy Code encompasses “ ‘every conceivable interest of the debtor,
       future, non-possessory, contingent, speculative, and derivative.’ ” Dailey v. Smith, 292 Ill. App. 3d 22,
       24 (1997) (quoting In re Yonikus, 996 F.2d 866, 869 (7th Cir. 1993)); see also Shoup v. Gore, 2014 IL
       App (4th) 130911, ¶ 11. Thus, any personal injury claims accruing before or during the pendency of the
       bankruptcy are property of the estate, even if those claims are potential and unliquidated. See Shoup,
       2014 IL App (4th) 130911, ¶ 11.
           3
             Some federal courts have held that all of the property in a Chapter 13 estate reverts to the debtor
       upon confirmation of the bankruptcy plan, pursuant to 11 U.S.C. §§ 1141(b) and 1327 (2012). See, e.g.,
       Diamond Z. Trailor, Inc. v. JZ, L.L.C. (In re JZ L.L.C.), 371 B.R. 412, 418 (B.A.P. 9th Cir. 2007).
       However, the majority of federal courts to address the issue hold that any potential legal causes of
       action or other assets acquired after confirmation but before discharge of the bankruptcy proceeding are
       property of the Chapter 13 estate. See, e.g., In re Wilson, 555 B.R. 547, 551-53 (Bankr. W.D. La. 2016)
       (collecting cases); Waldron, 536 F.3d 1239; In re Harvey, 356 B.R. 557 (Bankr. S.D. Ga. 2006). We
       find the latter view to be better reasoned because it harmonizes what would otherwise appear to be
       contradictory provisions in the Bankruptcy Code. See Wilson, 555 B.R. at 551-53.

                                                       -4-
       11 U.S.C. § 350(b) (2012); In re James, 487 B.R. 587, 594-95 (Bankr. N.D. Ga. 2013);
       Easley-Brooks, 487 B.R. at 409; An-Tze Cheng, 308 B.R. at 461.
¶ 16       Although there is a trustee in a Chapter 13 bankruptcy, the trustee acts as an advisor and
       administrator while the debtor remains in possession of the estate. 11 U.S.C. §§ 1302(a), 1303,
       1306(b) (2012); Cable, 200 F.3d at 472. Accordingly, a Chapter 13 debtor can pursue legal
       claims for the benefit of the estate and its creditors. Fed. R. Bankr. P. 6009; Cable, 200 F.3d at
       472-73 (“Under the reorganization chapters [including Chapter 13], the debtor-in-possession
       steps into the role of trustee and exercises concurrent authority to sue and be sued on behalf of
       the estate.”); Smith v. Rockett, 522 F.3d 1080, 1081 (10th Cir. 2008) (collecting cases).
       However, the debtor lacks standing to bring such claims for his own benefit. Smith, 522 F.3d at
       1082; Cable, 200 F.3d at 473-74; Ruhl v. HSBC Mortgage Services, Inc., 399 B.R. 49, 55 (E.D.
       Wis. 2008); Richardson v. United Parcel Service, 195 B.R. 737 (E.D. Mo. 1996).4 As long as
       the bankruptcy proceedings are ongoing, a Chapter 13 debtor can inform the trustee of
       previously undisclosed legal claims, and unless the trustee elects to abandon that property, the
       debtor may litigate the claims on behalf of the estate and for the benefit of the creditors without
       prior court approval. Fed. Rs. Bankr. P. 1009(a), 6009; Smith, 522 F.3d at 1082; Thomas v.
       Indiana Oxygen Co., 32 F. Supp. 3d 983, 988 (S.D. Ind. 2014). Once the bankruptcy case is
       closed, however, a debtor no longer can pursue claims on behalf of the estate. Thus, if a legal
       claim that belongs to the estate is not disclosed and abandoned or administered by the trustee in
       the prior bankruptcy proceeding, a former Chapter 13 debtor lacks standing to bring that claim
       in his individual capacity and for his own benefit after the bankruptcy proceedings have closed.
       123 Cutting Co. v. Topcove Associates, Inc., 770 N.Y.S.2d 365, 366 (App. Div. 2003) (“a
       debtor’s failure to list a legal claim as an asset in his or her bankruptcy proceeding causes the
       claim to remain the property of the bankruptcy estate and precludes the debtor from pursuing
       the claim on his or her own behalf” (internal quotation marks omitted)); Best v. MetLife Auto &
       Home Insurance Co., 793 N.Y.S.2d 682 (Sup. Ct. 2004); Van Horn v. Martin, No.
       5:13-CV-74-DPM, 2015 WL 925895, at *1 (E.D. Ark. Mar. 3, 2015) (holding that former
       Chapter 13 debtor lacked standing to file employment discrimination claim that accrued while
       her bankruptcy proceeding was pending where the former debtor never disclosed or scheduled
       the claim as an asset during the bankruptcy and she filed the claim after she made her final
       payment pursuant to the Chapter 13 plan).5


           4
              See also Tucker v. Closure Systems International (CSI), No. 1:10-CV-1476-RLY-TAB, 2011 WL
       4479112, at *2 (S.D. Ind. Sept. 27, 2011) (ruling that, because plaintiff Chapter 13 debtor did not list
       her employment discrimination claims as assets of the estate in her bankruptcy schedules when she
       initially filed those claims in court, she “was not bringing [her] claims on behalf of the estate,” and
       therefore lacked standing to sue until she subsequently amended her schedules to include the claims);
       Calvin v. Potter, No. 07 C 3056, 2009 WL 2588884, at *3 (N.D. Ill. Aug. 20, 2009) (dismissing Chapter
       13 debtor’s discrimination claims for lack of standing where debtor failed to mention the claims in the
       bankruptcy proceeding and where the trustee had not abandoned the claims because the debtor “[did]
       not have standing to litigate her discrimination claims against [the defendant] for her personal benefit”).
            5
              We acknowledge that our supreme court recently decided a case on similar facts without
       addressing the Chapter 13 debtor’s standing. See Seymour v. Collins, 2015 IL 118432. In Seymour,
       however, the plaintiffs filed their personal injury claim while the bankruptcy proceeding was ongoing.
       Moreover, there is no indication that the issue of standing was raised by either party in Seymour.

                                                       -5-
¶ 17       In this case, the instant personal injury claim accrued on October 7, 2011, while Barnes’
       bankruptcy proceeding was ongoing. The claim was therefore property of the bankruptcy
       estate. 11 U.S.C. §§ 541(a)(1), 1306(a)(1) (2012); Waldron, 536 F.3d at 1241. Nevertheless,
       Barnes never disclosed the claim or scheduled it as an asset during the bankruptcy proceeding
       even though the bankruptcy proceeding remained ongoing for another 18 months. After she
       was discharged from bankruptcy, Barnes filed the instant claim in her individual capacity for
       her own benefit. She lacked standing to do so because the claim remained property of the
       bankruptcy estate. 123 Cutting Co., 770 N.Y.S.2d at 366; Best, 793 N.Y.S.2d 682; Van Horn,
       2015 WL 925895, at *1.
¶ 18       We therefore affirm the trial court’s grant of summary judgment in favor of the defendants.
       In order to bring the instant claim, Barnes must move to reopen the bankruptcy proceeding so
       that she may schedule the claim as an asset of the bankruptcy estate. If the bankruptcy
       proceeding is reopened, Barnes will then have standing to refile the claim in her own name,
       provided that she does so on behalf of the estate and her creditors. 6 Alternatively, after
       reopening the bankruptcy proceeding, Barnes could ask the trustee to pursue the claim on
       behalf of the estate and the creditors.

¶ 19                                          2. Judicial Estoppel
¶ 20       Even assuming arguendo that Barnes had standing to file the instant claim, we would
       affirm the trial court’s grant of summary judgment on the basis of judicial estoppel. In
       determining whether to bar a claim on grounds of judicial estoppel, the trial court must first
       determine whether the prerequisites for application of judicial estoppel have been met.
       Seymour, 2015 IL 118432, ¶ 47. In this respect, the party to be estopped must have “(1) taken
       two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial
       administrative proceedings, (4) intending for the trier of fact to accept the truth of the facts
       alleged, and (5) have succeeded in the first proceeding and received some benefit from it.
       [Citations.]” Id. If all these prerequisites have been established, the trial court must then
       “determine whether to apply judicial estoppel—an action requiring the exercise of discretion.”
       Id. Multiple factors may inform the court's decision, among them the significance or impact of
       the party's action in the first proceeding and “whether there was an intent to deceive or mislead,
       as opposed to the prior position having been the result of inadvertence or mistake.” Id.
¶ 21       When the trial court’s discretionary application of judicial estoppel results in the
       termination of the litigation by summary judgment, as here, our review is de novo. Id. ¶ 49.
       Summary judgment is appropriate if no material fact is in dispute, if reasonable persons could
       not draw differing “inferences from the undisputed material facts,” and if reasonable persons
       could not “differ on the weight to be given the relevant factors of a legal standard.” Id. ¶ 42. In
       reviewing an order granting summary judgment, we strictly construe the record against the
       movant and view it liberally in favor of the nonmoving party. Id. ¶ 49. Where there are no
       disputed issues of material fact related to the application of judicial estoppel, we then decide
       whether the trial court abused its discretion in applying the doctrine.
¶ 22       In this case, Barnes took inconsistent positions by (1) failing to inform the bankruptcy
       court of her new asset of a personal injury cause of action, thus representing that no claim

           6
            If the trustee expressly abandons the claim, Barnes would then have standing to pursue the claim
       for her own benefit. 11 U.S.C. § 554(d) (2012).

                                                     -6-
       existed, and (2) filing this cause of action. She intended the courts in each proceeding to accept
       the truth of the facts she alleged. Moreover, she received a benefit from the bankruptcy
       proceeding by having more than $92,000 of her unsecured debt discharged in bankruptcy
       without having to increase her payments to her creditors in light of the claim. Thus, all of the
       prerequisites for judicial estoppel have been met.
¶ 23       The only remaining question is whether the trial court properly exercised its discretion by
       applying judicial estoppel to dismiss Barnes’s claim on summary judgment. Although the trial
       court’s brief written order granting summary judgment is in the record, a transcript of the oral
       arguments and of any statements the trial court made from the bench in granting the
       defendants’ motion has not been made part of the record on appeal.7 Absent such a transcript,
       we will not presume that the trial court abused its discretion or failed to consider the proper
       factors, such as whether Barnes’s failure to disclose the personal injury claim in the bankruptcy
       proceeding was inadvertent or deliberate. To the contrary, absent an adequate record of the
       hearing, “ ‘it [is] presumed that the order entered by the trial court [is] in conformity with the
       law and had a sufficient factual basis.’ ” Webster v. Hartman, 195 Ill. 2d 426, 432 (2001)
       (quoting Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984)); see also Mercantile Holdings, Inc. v.
       Feldman, 258 Ill. App. 3d 748, 752 (1994) (affirming trial court’s dismissal of the plaintiff’s
       claim on grounds of laches and ruling that “absent a transcript of the hearing, we shall presume
       that the trial court exercised its discretion properly” in dismissing the claim).8
¶ 24       In any event, there is ample evidence in this case suggesting that Barnes’s failure to
       disclose her personal injury claim during the bankruptcy was a deliberate attempt to mislead or
       deceive the bankruptcy court and Barnes’s creditors. Eighteen days after the automobile
       accident, Barnes retained a personal injury lawyer to represent her in connection with the
       October 2011 automobile accident. At that time, Barnes’s personal injury lawyer wrote to the
       defendants stating that he anticipated that Barnes’s damages from the accident “could easily
       exceed $50,000” in medical bills “plus lost wages.” Nevertheless, Barnes did not disclose her
       personal injury claim or report any “lost wages” or diminishment of earning capacity to the
       bankruptcy court during the ensuing 18 months while the bankruptcy proceedings remained
       pending. Nor did she file her claim or attempt to reach a settlement with the defendants during
       that time. Instead, she sat on her claim for almost two years and then filed the claim in her own
       name and for her own benefit after the bankruptcy proceedings had closed and her unsecured
       debt had been discharged.
¶ 25       These facts (and others) render the instant case distinguishable from Seymour, wherein our
       supreme court found no evidence that the plaintiffs intended to deceive or mislead the
       bankruptcy court. In Seymour, the court found it significant that the plaintiffs had attempted to
       settle their personal injury claim while the bankruptcy proceedings were ongoing, noting that if

           7
             The trial court’s one-sentence written order indicates that the court conducted a hearing on the
       defendants’ summary judgment motion, during which the parties appeared by counsel and presented
       oral argument.
           8
             This presumption is appropriate even though the trial court’s written order is in the record on
       appeal because the oral pronouncement of the court is the judgment of the court, while the written order
       merely serves as evidence of the court's judgment. People v. Smith, 242 Ill. App. 3d 399, 402 (1993).
       Thus, if the oral pronouncement of the court and the written order conflict, the oral pronouncement of
       the court controls. Id.; see also People v. Roberson, 401 Ill. App. 3d 758, 774 (2010).

                                                      -7-
       the plaintiffs were trying to avoid creditors, “they would have waited until after the discharge
       in bankruptcy to attempt to settle [their personal injury] suit.” Seymour, 2015 IL 118432, ¶ 59.
       That is exactly what Barnes did in this case. Although her counsel wrote the defendants shortly
       after the accident, Barnes does not allege that she attempted to settle the personal claim while
       the bankruptcy proceeding was pending; instead, she waited almost two years and filed her
       claim only after the discharge in bankruptcy (unlike the Seymour plaintiffs, who filed their
       claim while the bankruptcy was pending). Moreover, the plaintiffs in Seymour claimed that the
       bankruptcy trustee had advised them that they were only required to disclose “lump sum funds
       received in excess of $2,000” during the bankruptcy proceeding, which would not include their
       potential, unliquidated personal injury claim. They submitted an affidavit from the trustee
       attesting to this fact, and an affidavit from their bankruptcy counsel supporting their claim that
       they were not required to disclose the unliquidated personal injury action. Seymour, 2015 IL
       118432, ¶¶ 10-14. Barnes makes no such allegations here. She does not claim that the trustee in
       her bankruptcy case said anything suggesting that Barnes was not required to disclose
       unliquidated legal claims. Moreover, she admits that she never even informed her bankruptcy
       attorney about her personal injury claim against the defendants. She also admits that she never
       informed her personal injury attorney about the bankruptcy proceeding. Thus, Barnes does not
       and cannot claim that she acted in reliance on any advice from the trustee or from her counsel.
¶ 26       Under these circumstances, the trial court could have reasonably found that Barnes’s
       failure to disclose the claim during bankruptcy was deliberate rather than inadvertent. In fact,
       the record does not support a contrary inference, even when all reasonable inferences are
       drawn in Barnes’s favor. Moreover, Barnes’s deliberate concealment of her personal injury
       claim had a significant impact on the bankruptcy proceeding because a legal claim that Barnes
       asserts is worth in excess of $50,000 was never disclosed to Barnes’s creditors and Barnes
       succeeded in having more than $92,000 in unsecured debt discharged in bankruptcy. For these
       reasons and because all of the prerequisites for judicial estoppel were met, the trial court did
       not abuse its discretion in grating summary judgment for the defendants on the basis of judicial
       estoppel.

¶ 27                                       CONCLUSION
¶ 28      The judgment of the circuit court of Fulton County is affirmed.

¶ 29      Affirmed.




                                                   -8-
