author: Carley, Chief Judge.

text:
    77810, 77811.
    ADAMS v. D & D LEASING COMPANY OF GEORGIA, INC.; and vice versa.
    (381 SE2d 94)
   Carley, Chief Judge.

Linnie Adams leased a vehicle from D & D Leasing Company of Georgia, Inc. (D & D). Subsequently, Ms. Adams defaulted on the monthly rental payments. After selling the vehicle at a private sale, D & D filed suit, seeking to recover under the liquidated damages provision of the “vehicle lease” agreement. Ms. Adams answered and asserted, among her other defenses, that D & D had failed to comply with the requirements of the Uniform Commercial Code regarding the giving of notification to her prior to the sale and the disposal of the automobile in a commercially reasonable manner. See OCGA §§ 10-1-36 and 11-9-540 (3).

Following discovery, D & D moved for summary judgment, urging that the provisions of the Uniform Commercial Code were inapplicable. Ms. Adams filed a cross-motion for partial summary judgment, urging that the liquidated damages provision of the “vehicle lease” agreement was an unenforceable penalty. The trial court granted both motions for summary judgment and, in accordance with those rulings, entered summary judgment in favor of D & D for $9,168.71 as actual damages for the breach of the lease. In Case No. 77810, Ms. Adams appeals from the trial court’s grant of D & D’s motion for summary judgment. In Case No. 77811, D & D cross-appeals from the trial court’s grant of Ms. Adams’ motion for partial summary judgment.

Case No. 77811

1. D & D’s cross-appeal from the grant of Ms. Adams’ motion for partial summary judgment will be addressed first.

It is D & D’s contention that the trial court erroneously construed the following liquidated damages provisions to be an unenforceable penalty: “In the event of a default^] this Lease shall terminate [and] all rights and privileges pertaining to the use of the Vehicle afforded under the provisions of the Lease shall cease to exist with respect to Lessee, and Lessor may take any or all of the following actions, to the extent permitted under applicable laws: (a) seek immediate payment by Lessee (as liquidated damages for loss of a bargain and not as a penalty) of an amount equal to all unpaid rental payments which absent a default would have been payable hereunder for the full Lease Term hereof and, in addition, the Residual Value of the Vehicle. . . .”

“ ‘In deciding whether a contract provision is enforceable as liquidated damages, the court makes a tripartite inquiry to determine if the following factors are present: “First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.” [Cits.]’ [Cit.]” Gibson v. Sheriff, 155 Ga. App. 578 (271 SE2d 710) (1980). “ ‘[I]n cases of doubt the courts favor the construction which holds the stipulated sum to be a penalty, and limits the recovery to the amount of damages actually shown, rather than a liquidation of the damages.’ [Cit.]” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 231 (227 SE2d 340) (1976).

A determination of the enforceability of the instant liquidated damages provision requires consideration of several prior decisions of this court. In Military Armament Corp. v. ITT Terryphone Corp., 134 Ga. App. 694, 695 (2) (215 SE2d 724)(1975), a liquidated damages provision not unlike that at issue in the present case was held to be enforceable. This holding was subsequently followed in Hughes Motor Co. v. First Nat. Bank of Atlanta, 136 Ga. App. 295, 296 (3) (220 SE2d 782) (1975) and in Ford Motor Credit Co. v. Dowdy, 159 Ga. App. 666 (284 SE2d 679) (1981). However, a similar liquidated damages provision was then held to be unenforceable in Taylor v. Commercial Credit &c. Corp., 170 Ga. App. 322 (316 SE2d 788) (1984). The previous decisions were not overruled, but were distinguished on the basis that “substantial portions of the lease terms had passed and the range of damages was 25 to 50 percent of the total amounts due. Those cases thus differ significantly from the instant case, where the default occurred in the second year of a 10-year term and liquidated damages of almost 60 percent of the original total lease payments were sought.” Taylor v. Commercial Credit &c. Corp., supra at 323. In a special concurrence in Taylor, Judge Banke and three other judges agreed with the majority that the liquidated damages provision was unenforceable, but urged that the prior decisions were not distinguishable and should be overruled. The decision in Taylor, supra, was subsequently followed and applied in Blair v. Motorized Leasing, 173 Ga. App. 283 (3) (325) SE2d 896) (1985).

Upon further consideration, it would appear that the attempt in Taylor, supra, to distinguish this court’s previous decisions is unavailing. The enforceability of a liquidated damages provision is not dependent upon the time at which the underlying contract is breached. As is true with regard to the determination of the enforceability of any other contractual provision, a liquidated damages provision is or is not enforceable based upon the intent that was manifested at the time that the provision was originally proposed and agreed to. By its terms, a liquidated damages provision such as is here in issue is intended to apply regardless of when the breach occurs and courts should confine themselves to a determination of whether that intent is or is not enforceable. If a liquidated damages provision is unenforceable under the tripartite test at the time of original entry into the underlying contract, it does not become enforceable as the result of the passage of an arbitrary period of time. Likewise, if a liquidated damages provision is enforceable under the tripartite test at the time of original entry into the underlying contract, it is not thereafter rendered unenforceable by the passage of an arbitrary period of time. Accordingly, insofar as Taylor, supra, purports to add, as a fourth element to the tripartite test for determining the enforceability of a liquidated damages provision, the time of the breach of the underlying contract, it is hereby overruled. To the extent that it follows Taylor, the decision in Blair v. Motorized Leasing, supra, is likewise overruled.

Having held that the decisions in Military Armament Corp., supra, Hughes Motor Co., supra, and Ford Motor Credit Co., supra, cannot be distinguished, the issue becomes whether those decisions will continue to be followed. As previously noted, the recognized tripartite test includes, as its third element, the requirement that “ ‘ “the sum stipulated must be a reasonable pre-estimate of the probable loss.” [Cits.]’ [Cit.]” (Emphasis supplied.) Gibson v. Sheriff, supra at 578. “ ‘[T]he measure of damages for the lessee’s breach of contract is the cash, value of the contract less any saving which may accrue from the breach.’ [Cit.]” (Emphasis supplied.) Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 715 (2) (165 SE2d 581) (1968). It follows that, to the extent that a liquidated damages provision in a lease of personalty provides for the acceleration of the remaining rental payments without a reduction to present value, it cannot be said to constitute a reasonable pre-estimate of the probable loss. “[I]t is manifestly unreasonable and oppressive to allow a [lessor] to collect in advance [all] rental payments at their full future value. . . . Needless to say, such a result would provide the [lessor] with a recovery bearing no reasonable relation to his probable actual damages.” Jones v. Clark, 147 Ga. App. 657, 659 (2) (249 SE2d 619) (1978). Accordingly, to the extent that Military Armament Corp., supra, Hughes Motor Co., supra, and Ford Motor Credit Corp., supra, uphold the enforceability of a liquidated damages provision such as that at issue in the present case, they are erroneous and are hereby overruled.

It follows that the trial court did not err in construing the instant liquidated damages provision to be an unenforceable penalty and that it correctly granted partial summary judgment in favor of Ms. Adams as to this issue.

2. The trial court, having found that the liquidated damages provision was unenforceable, further found that D & D had suffered $9,168.71 in actual damages and entered summary judgment in favor of D & D for that amount. D & D enumerates as error the trial court’s calculation of the amount of actual damages.

Having reviewed the record, we find no evidence which would authorize an award to D & D in the amount of $9,168.71. As previously noted, the proper measure of damages for the breach of a lease of personal property is the cash value of the contract less any saving which may accrue from the breach. See Bennett v. Assoc. Food Stores, supra. Applying this measure of damages to the evidence of record, a genuine issue of material fact remains as to the amount of recoverable actual damages that D & D suffered as the result of Ms. Adams’ breach of the lease. Accordingly, the trial court erred in granting summary judgment in favor of D & D as to the issue of its actual damages.

3. The trial court’s grant of partial summary judgment in favor of Ms. Adams as to the unenforceability of the liquidated damages provision is affirmed. The trial court’s grant of summary judgment in favor of D «Se D as to the amount of the recoverable actual damages is reversed.

Case No. 77810

4. Ms. Adams enumerates as error the trial court’s grant of D & D’s motion for summary judgment as to liability, urging that a genuine issue of material fact remains as to whether the agreement evidences a disguised secured transaction rather than a true lease.

“The relevant provisions of the agreement signed by [Ms. Adams] are substantially identical to those which were contained in the [vehicle lease] agreement at issue in Mejia v. C & S Bank, 175 Ga. App. 80 (332 SE2d 170) (1985). The agreement in Mejia, supra at 82, was held to be a ‘true lease’ and, therefore, the provisions of the Uniform Commercial Code would be inapplicable. “Since the [vehicle lease] agreement in the present case likewise evidences a ‘true lease,’ rather than a disguised secured transaction,” the trial court correctly granted appellee’s motion for summary judgment. Citizens & Southern Nat. Bank v. Thomas, 188 Ga. App. 312 (372 SE2d 687) (1988). See also Woods v. Gen. Elec. &c. Lease, 187 Ga. App. 57 (2) (369 SE2d 334) (1988).

Decided March 14, 1989

Rehearing denied March 29, 1989

Ralph S. Goldberg, for appellant.

Fredric Chaiken, Robert J. Kaufman, for appellee.

5. Ms. Adams enumerates as error the amount awarded by the trial court to D & D as attorney’s fees.

It appears that the trial court did apply an erroneous formula in calculating the amount of attorney’s fees. “The trial court’s computation of attorney fees was based upon a flat rate of 15 per cent. Under [OCGA § 13-1-11 (a) (2)] this was erroneous.” Lakeview Memory Gardens v. Nat. Bank &c. Co. of Columbus, 155 Ga. App. 478, 481 (4) (271 SE2d 219) (1980). See also Woods v. Gen. Elec. &c. Lease, supra at 60 (2). Moreover, for the reason discussed in Division 2, employment of $9,168.71 as the base figure from which tó calculate the amount of attorney’s fees was also erroneous. It follows that the trial court’s grant of summary judgment in favor of D & D as to the amount of recoverable attorney’s fees must be reversed.

6. The trial court’s grant of summary judgment in favor D & D as to the issue of liability is affirmed. The trial court’s grant of summary judgment in favor of D & D as to the amount of attorney’s fees is reversed.

Judgment affirmed in part and reversed in part in Case No. 77810. Judgment affirmed in part and 'reversed in part in Case No. 77811.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Beasley, J., concurs in judgment only.


source: Caselaw Access Project

author: Per curiam. Benham, Judge, McMurray, Presiding Judge,

license: Public Domain

text:
    77815.
    REESE v. GEORGIA POWER COMPANY et al.
    (381 SE2d 110)
   Per curiam.

Plaintiff Reese seeks review of the summary judgment granted to defendant Georgia Power Company (“Georgia Power”) in the personal injury action he filed against it and its employee, defendant Standley. Reese also challenges the trial court’s denial of his motion to disqualify as counsel the law firm representing both Georgia Power and Standley.

While driving a Georgia Power vehicle, Standley collided with Reese, who was riding his motorcycle. Reese suffered personal injury and property damage in the accident, and sued Standley and Georgia Power under the theory of respondeat superior. Both defendants, represented by the same law firm, filed answers denying negligence and liability, with Georgia Power denying that Standley was acting in the scope of his employment. Georgia Power moved for summary judgment and filed supporting affidavits, including one from Standley in which he deposed that he took it upon himself to use his employer’s truck to pick up family members on his lunch hour and take them to lunch, and that he did not have authority to use a company truck in such a manner. Reese then moved to disqualify defendants’ counsel, asserting that a conflict of interest existed between Georgia Power and Standley. The trial court denied the disqualification motion and granted summary judgment to Georgia Power and Reese now appeals. Held:

1. Georgia Power has filed a motion to dismiss Reese’s first enumeration of error, wherein Reese raises the disqualification issue. Georgia Power argues that the appeal from the order denying Reese’s motion to disqualify defendants’ counsel was an untimely interlocutory appeal.

Although Reese did not seek an interlocutory appeal from the denial of his motion to disqualify counsel, he properly placed the issue before this court by raising it in his appeal of the grant of summary judgment. An order granting summary judgment on any issue or as to any party shall be subject to review by appeal, and where such appeal is taken, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability or finality of such judgments, rulings, or orders standing alone. OCGA § 5-6-34 (c); OCGA § 9-11-56 (h); Culwell v. Lomas & Nettleton Co., 242 Ga. 242 (248 SE2d 641) (1978). See also Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980). Therefore, we deny Georgia Power’s motion to dismiss Reese’s first enumeration of error.

Next, Georgia Power moves to strike certain portions of the supplemental record sent to this court by the trial court. The items Georgia Power seeks to remove from the record now before this court are the motion to disqualify the law firm representing Georgia Power and Standley; the order denying that motion; the two depositions of Standley; and the deposition of Standley’s foreman.

We have not considered the depositions Georgia Power seeks to exclude from the appellate record as they were not timely filed.

2. First, Reese argues that the divergent interests of Georgia Power and Standley mandate the disqualification of the law firm representing them.

“ ‘The objection that an attorney is disqualified by reason of his representing adverse interest is available only to those as to whom the attorney in question sustains, or has sustained, the relation of attorney and client.’ 7 CJS Attorney & Client § 47 at 826. . . . [0]ther jurisdictions have . . . characterized [this] as the majority or general rule. See, e.g., In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88 (3) (5th Cir. 1976); Murchison v. Kirby, 201 F.Supp. 122, 123 (1) (S.D.N.Y. 1961); Otis & Co. v. Pennsylvania R. Co., 57 F.Supp. 680, 684 (4) (E.D. Pa. 1944).” Payne v. St. Louis Grain Corp., 562 SW2d 102, 106 (1977). See Lowe v. Graves, 404 S2d 652 (1981); Renard v. Columbia Broadcasting System, 126 Ill. App.3d 563, 567, 568 (5) (467 NE2d 1090); and 31 ALR3d 715, 726, 727, § 8.

Further, “courts have shown considerable reluctance to disqualify attorneys despite misgivings about an attorney’s conduct. As noted in Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979), ‘(t)his reluctance probably derives from the fact that disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and that disqualification motions are often interposed for tactical reasons (citations omitted). And even when made in the best of faith, such motions inevitably cause delay.’

“The court in Nyquist, accordingly, adopted a very strict standard for motions such as the instant one: Unless an attorney’s conduct tends to ‘taint the underlying trial,’ the court should be quite hesitant to disqualify him. 590 F.2d at 1246. Where there is no claim that the trial will be tainted, the appearance of impropriety, alone, ‘is too slender a reed on which to rest a disqualification order except in the rarest case.’ Id. at 1247. Accord Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981).” Tadier v. American Photocopy Equip. Co., 531 FSupp. 35, 36-37 (1981). See Blumenfeld v. Borenstein, 247 Ga. 406 (276 SE2d 607), and Rivers v. Goodson, 184 Ga. App. 70(1) (360 SE2d 740). Compare Georgia State Bd. of Pharmacy v. Lovvorn, 255 Ga. 259 (336 SE2d 238); Georgia Dept. of Human Resources v. Sistrunk, 249 Ga. 543 (291 SE2d 524); and First Nat. Bank of Chattooga County v. Rapides Bank &c. Co., 145 Ga. App. 514 (4) (244 SE2d 51).

In the case sub judice, Standley makes no claim that his trial will be tainted. On the contrary, Reese appears to be the only party aggrieved by defendant’s choice of counsel. Consequently, since Reese can show no interest in compelling disqualification of defendants’ attorney and since the record does not indicate that either defendant is dissatisfied with defendants’ trial counsel, the trial court appropriately denied plaintiff Reese’s motion to disqualify. Compare Wood v. Georgia, 450 U. S. 261 (101 SC 1097, 67 LE2d 220), where a hearing was ordered by the United States Supreme Court to determine whether a conflict existed which required disqualification of an attorney who represented an employer and its employees, in an action where the employees were subject to criminal prosecution.

3. Reese contends the trial court erred in granting summary judgment to Georgia Power. We disagree.

“(T)o hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own. . . . The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master. [Cit.]” Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738, 739 (356 SE2d 693) (1987).

It is undisputed that, at the time of the collision, Standley was returning to his job site after having had lunch with his mother and sister. The affidavits executed by Standley, his supervisor, and the man to whom the truck involved in the collision was assigned state facts demanding the conclusion that Standley was not acting within the scope of his employment at the time of the collision. The only portion of Standley’s affidavit addressing his authority to take the truck home with him and the purpose for that authority is the following: “I do operate a 1 ton truck with air compressor, arc welder, acetylene and oxygen tank, pneumatic jack and other equipment to repair Georgia Power Company vehicles and am allowed to take this particular truck home with me at night in case of an emergency whereby Georgia Power Company has an equipment breakdown and needs this vehicle on the scene for immediate repairs.” [Emphasis supplied.] Standley’s statement makes it clear that he was not furnished with just any truck, but with a truck carrying specific equipment to repair vehicles, and that the purpose of Standley taking that particular truck home was to make the truck and its equipment available, not to make Standley available. The affidavit clearly specifies that Standley had a “particular” vehicle assigned to him, which he was not driving at the time of the collision. In addition, the affidavit contains not even a hint that Standley’s use of the truck assigned to him was in any way intended to be for his benefit. Rather, it was assigned to him for Georgia Power’s benefit. The notion that Standley was therefore acting within the scope of his employment at the time of the collision is directly contradicted in Standley’s affidavit: “I have never been authorized by Georgia Power Company to use this 1 ton truck for my lunch hour”; in his supervisor Parrish’s affidavit: “Standley was not assigned any Georgia Power Company vehicle to be used for his lunch hour nor was he given authority to operate any Georgia Power Company vehicles during his lunch hour”; and in the affidavit of Monroe, to whom the truck was assigned: “At no time did I give . . . Standley any permission to drive the [truck involved in the collision] on [the day of the collision] or any other time.” It is crucial to recognize that the collision did not occur at a time when Standley was on his way to or from work in the truck assigned to him, but while he was on his lunch hour, on a purely personal mission, driving a truck which he had no authority to drive. In Standley’s affidavit and that of his supervisor, it is made abundantly clear that Standley’s lunch hour was his own, to use as he chose. “Standley is free to go wherever he chooses to have lunch or eat lunch on the Georgia Power Company premises.” (Parrish affidavit); “I was free to eat or go anywhere I desired so far as Georgia Power Company is concerned during my lunch hour.” (Standley affidavit). There is not the slightest hint that he was on call during his lunch hour. In fact, he was not paid for his lunch hour. “At the time of the collision I was on my lunch hour and the income I receive from Georgia Power Company is by the hour and I am not paid for my hour’s lunch each day.” (Standley affidavit); “Standley is paid by the hour and is given one hour for lunch each day and he is not paid for his lunch break.” (Parrish affidavit).

Unfortunately for Reese, there are no ambiguities and conclusions to be construed most favorably toward him. The uncontradicted evidence is that Standley, on his own time, took a Georgia Power vehicle he had no authority to take, and drove it on a purely personal mission.

The affidavits do not raise any inference that Standley was in the scope of his employment, and the plaintiff has not, as he must to avoid summary judgment, set forth specific facts showing that there is a genuine issue for trial. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979). See also Trollinger v. Bob & Carolyn Ford, 180 Ga. App. 252 (1) (349 SE2d 11) (1986). The record properly before us demands that we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

Banke, P. J., Birdsong, Sognier, Pope and Beasley, JJ., concur. Carley, C. J., and McMurray, P. J., concur in Divisions 1 and 2 and dissent as to Division 3. Deen, P. J., and Ben-ham, J., concur in Divisions 1 and 3 and dissent as to Division 2.

Benham, Judge,

concurring in part and dissenting in part.

Although I concur with the majority in its treatment of the merits of the grant of summary to Georgia Power, I am compelled to file this dissent because I disagree with the majority’s conclusions concerning the disqualification issue. I am of the opinion that the trial court erred in failing to disqualify the law firm representing both Georgia Power and Standley, and therefore the judgment in favor of Georgia Power must be reversed and the case remanded to allow both defendants to retain new counsel.

1. I do not agree with the majority that Reese has no standing to raise the disqualification issue. The majority’s assertion that “ ‘ “[t]he objection that an attorney is disqualified by reason of his representing adverse interests is available only to those as to whom the attorney in question sustains, or has sustained, the relation of attorney and client” [Cit.]’ ” is incorrect. On at least one occasion, this court has heard and decided a case involving a disqualification motion filed by a party who was not previously or at that time represented by the attorney against whom the motion was directed, and this court did not find a standing problem. See First Nat. Bank of Chattooga County v. Rapides Bank &c. Co., 145 Ga. App. 514 (4) (244 SE2d 51) (1978). For other cases in which the conflict of interest issue was examined by our courts even though it was raised by someone other than a client or former client of the attorney in question, see Georgia State Bd. of Pharmacy v. Lovvorn, 255 Ga. 259 (336 SE2d 238) (1985); Georgia Dept. of Human Resources v. Sistrunk, 249 Ga. 543 (291 SE2d 524) (1982); Blumenfeld v. Borenstein, 247 Ga. 406 (276 SE2d 607) (1981); Rivers v. Goodson, 184 Ga. App. 70 (360 SE2d 740) (1987). All of the cases upon which the majority relies are from foreign jurisdictions, and all but Tadier v. American Photocopy Equip. Co., 531 FSupp. 35 (S.D. N.Y.) (1981), were decided before the United States Supreme Court handed down its decision in Wood v. Georgia, 450 U. S. 261 (101 SC 1097, 67 LE2d 220) (1981). In Wood, the United States Supreme Court found that opposing counsel has standing to raise a conflict of interest issue, particularly when the attorney on whom the conflict of interest charge focused would be unlikely to concede that he had continued improperly to act as counsel, and his clients, low level employees of the codefendant, were not capable of protecting their own interests on their own initiative. Id. 450 U. S. at 265. Those elements are present in the case before us. Tadier makes no mention of the Wood case, but still concludes, based on a 1980 New York district court case, that the court should reach the merits of the disqualification motion. That decision is in line with Wood and the opinion of others who have examined the issue in depth. “[Standing to raise the conflict of interest issue is not limited to clients or former clients. An opposing lawyer, whether representing a former client or not, may properly complain about a lawyer’s conflict of interest. The justification for this rule is the public interest in protecting the integrity of the legal process. The right to complain about a conflict of interest, thus, is extended to persons who are placed at a disadvantage by reason of a lawyer’s breach of an ethical duty. . . . [Cit.]” Patterson, “An Analysis of Conflicts of Interest Problems,” 37 Mercer Law Rev. 569, 591 (Winter 1986). (Fn. ommitted.)

2. In addressing the merits of the motion to disqualify, our decision must be based, to a great extent, on those rules, regulations, and ethical considerations to which all members of our state bar must adhere. Standard 36 of the Rules and Regulations of the State Bar of Georgia states: “A lawyer shall not continue multiple employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under Standard 37 . . . Standard 37 states: “A lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. A violation of this standard may be punished by disbarment.” Standard 38 states: “If a lawyer is required to decline employment or to withdraw from employment under Standards 35, 36, or 37, no partner or associate of his or his firm may accept or continue such employment . . . .”

In the case before us, Georgia Power could have taken two positions with regard to its employee Standley, one of which conflicted with his interests and the other of which did not. There would be no conflict (i.e., both parties would benefit) if Standley is shown not to have been acting negligently at the time of the accident, regardless of whether or not he was acting within the scope of his employment. However, there is a conflict if Standley is shown to have been acting outside the scope of his employment when the accident occurred, since that would relieve Georgia Power, but not Standley, of all liability regardless of Standley’s negligence. When Georgia Power moved for summary judgment, its counsel prepared a supporting affidavit in which Standley admitted that he was acting outside the scope of his employment, thereby exposing himself to sole liability for the damages appellant seeks. The seriousness of this conflict made disqualification appropriate. Dunton v. County of Suffolk, 729 F2d 903, 908 (2nd Cir. 1984). Counsel for Georgia Power advocated a position that created a conflict between Georgia Power and its codefendant, the attorney’s other client, thereby impairing “the exercise of [its counsel’s] independent professional judgment on behalf of [Standley,] and [he] is likely to be adversely affected by [counsel’s] representation of [Georgia Power] . . . .” Standard 36, supra. It is also obvious that defendants’ counsel cannot adequately represent the interest of each of the clients. See Standard 37, supra. Moreover, the record contains absolutely no showing that either client consented to the attorney’s multiple employment “after full disclosure of the possible effect of such representation on the exercise of [the attorney’s] independent professional judgment on behalf of each.” Id. The circumstance of representing multiple clients in this manner was inconsistent with defendants’ attorney’s professional obligation to Standley, and created an impermissible appearance of impropriety prohibited by the Canons of Ethics. For that reason, the motion to disqualify should have been granted. Id.; Crawford W. Long Mem. Hosp. &c. v. Yerby, 258 Ga. 720, 722 (373 SE2d 749) (1988). This court has previously held that even “potentially conflicting interest [are a sufficient basis upon which to] grant the motion to disqualify the attorney from any further involvement in the case, even though he may have acted in good faith and with the consent of both clients. ‘Where the fact that an attorney represents conflicting interests comes to the attention of the court before which a cause is pending, the court is required to prevent thé attorney from continuing so to act. The test in such cases is not the actuality of conflict, but the possibility that conflict may arise.’ [Cits.]” First Nat. Bank of Chattooga County, supra at 518. That holding was reiterated in Collins v. Levine, 156 Ga. App. 502 (2) (274 SE2d 841) (1980), where this court stated, “[w]e held quite clearly in First Nat. Bank [supra], that where defendants represented by the same counsel have potentially conflicting interests in a case, the counsel should be withdrawn even though he may have acted in good faith and with the consent of both clients.” (Emphasis supplied.) In both cases, this court found that it was error to deny the appellants’ motions to disqualify counsel. See also Young v. Champion, 142 Ga. App. 687 (1) (236 SE2d 783) (1977), in which the same standard was applied and this court found that the trial court properly disqualified the attorney. While it is true that there is no per se rule to disqualify an attorney on the basis of an appearance of impropriety alone, where the appearance is coupled with a conflict of interest, “disqualification is always justified and indeed mandated, even when balanced against a client’s right to an attorney of choice .... In these instances, it is clear that the disqualification is necessary for the protection of the client.” Blumenfeld v. Borenstein, supra at 409. In the case before us, we have a clear conflict of interests, and thus disqualification is mandated. The majority’s position that “ ‘the appearance of impropriety, alone, “is too slender a reed on which to rest a disqualification order except in the rarest case” ’ ” flies in the face of the standard set by the Canons of Ethics and our own Supreme Court. See Crawford W. Long Mem. Hasp., supra at 722. “It is an old and well-established maxim of law that the appearance of evil is as much to be abhorred as is the evil itself .... It goes without citation that an attorney is an officer of the court, and, as such, occupies a unique and high calling with equally high obligations to maintain professional integrity and conduct. This high office as an attorney incapacitates the attorney from representing different interests which are adverse in the sense that they are hostile, antagonistic or in conflict with each other. [Cits.]” Young v. Champion, supra at 689.

It is my solemn belief that we of the judiciary cannot merely pay “lip service” to the ethical standards and boundaries that we are sworn to uphold. The public as a whole has become more aware of the role of ethics in our society. More and more, public scrutiny has focused on the personal and professional ethics of those who would govern us, and many have been found to be lacking in this regard. When, as here, we are given the opportunity to provide guidance to and instill public trust and confidence in our profession, we can do no less than to let the light of integrity shine. This is particularly true when the reason for failing to do so is, as the majority implies, so as not to “cause delay.” I am convinced that the bench, the bar, and the public deserve better. “ ‘In this State, where the stability of Courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing Justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of this State and the Republic, of which it is a member, to a great extent, depends upon our maintenance of Justice pure and unsullied. It cannot be so maintained unless the conduct and motives of the members of our profession are such as to merit the approval of all just men [and women]’. [Cit.]” Young v. Champion, supra.

Assuming, for the moment, that Standley has not expressed unhappiness with the representation that he has received thus far, it is my opinion that he must be given the opportunity to be represented by counsel that will truly serve as his sole advocate and act in his best interest. Under those circumstances, Georgia Power would also need to retain new counsel pursuant to Standard 38, supra. “ ‘[A]n attorney cannot, upon the termination of any employment, represent one whose interest in the transaction is adverse to that of his former client,’ and . . . the “ ‘ “incapacity of an attorney to represent adverse interests also disqualifies him from representing interest which are in conflict with the interest of his former client, for the obligation of fidelity and loyalty still continues.” ’ ” Summerlin v. Johnson, 176 Ga. App. 336 (335 SE2d 879) (1985) (on motion for rehearing). For all of the reasons discussed, I believe that we should remand the case to the trial court with direction to proceed in a manner not inconsistent with what I have outlined above.

In light of my foregoing analysis of the case, I am of the opinion that the grant of summary judgment to Georgia Power must be reversed on the ground that counsel should have been disqualified. Once the parties are represented by new counsel, the trial court could entertain new motions for summary judgment.

I am authorized to state that Presiding Judge Deen joins in this opinion.

McMurray, Presiding Judge,

dissenting.

Although I agree with the first two divisions of the majority opinion, I must respectfully dissent as to Division 3 as I find a genuine issue of material fact remains as to whether Standley was acting within the scope of his employment at the time of the collision.

“ ‘A presumption arises when an employee is operating his employer’s automobile at the time of a collision, that he was acting within the scope of his employment. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979); Johnstown Fin. Corp. v. Roper, 170 Ga. App. 575 (317 SE2d 634) (1984); Massey v. Henderson, 138 Ga. App. 565 (226 SE2d 750) (1976). On a defendant’s motion for summary judgment, however, “(w)hen the uncontradicted testimony of the defendant and/or the employee shows that the employee was not acting within the scope of his employment at the time of the accident, the plaintiff must show, in addition to the facts which give rise to the presumption that he was in the course of his employment, some other fact which indicates the employee was acting within the scope of his employment. If this ‘other fact’ is direct evidence, that is sufficient for the case to go to a jury. However, when the ‘other fact’ is circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the defendant’s motion for summary judgment.” Allen Kane’s Major Dodge v. Barnes, supra at 780. Circumstantial evidence which is consistent with the defendant’s evidence used to rebut the presumption will not support a verdict. Id. at 781.’ Fred A. York, Inc. v. Moss, 176 Ga. App. 350, 351 (335 SE2d 618).” Trollinger v. Bob & Carolyn Ford, 180 Ga. App. 252 (1) (349 SE2d 11).

In the case sub judice, Georgia Power contends that there was no other fact, either circumstantial or direct, to indicate that Standley was acting within the scope of his employment at the time of the collision. Georgia Power relies primarily on portions of Standley’s affidavit and the affidavit of Standley’s foreman, wherein it is deposed that Standley was then operating Georgia Power’s service vehicle without authority and while on a purely personal mission. Other relevant evidence in Standley’s affidavit is not considered.

“All ambiguities and conclusions on consideration of summary judgment must be construed most favorably toward the respondent and against the movant. J. C. Penney Cas. Ins. Co. v. Williams, 149 Ga. App. 258, 261 (2) (253 SE2d 878).” North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346). Summers v. Milcon Corp., 134 Ga. App. 182, 183 (4) (213 SE2d 515). In the case sub judice, although Standley concluded that he had no authority to use a company vehicle during his lunch hour, he also deposed that he was a “mechanic crew leader” for Georgia Power; that he was furnished a company service vehicle to drive to and from work and that the purpose of his having a company vehicle available to him was so that he would be available to his employer “in case of an emergency. . . .” Construing this evidence in a light most favorable to Reese, it is a reasonable conclusion that Standley’s access to Georgia Power service vehicles was an integral part of his job; that it was for his personal benefit as well as for the benefit and convenience of Georgia Power and that Standley was therefore acting within the scope of his employment at the time of the collision. Duffee v. Rader, 178 Ga. App. 517, 518 (1) (344 SE2d 258). See Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 668 (4) (209 SE2d 66). Consequently, it is my view that the trial court erred in granting summary judgment to Georgia Power as a genuine issue of material fact remains for determination by a jury as to whether Standley was acting within the scope of his employment at the time of the collision. See Allen Kane’s Major Dodge v. Barnes, supra at 783.

Decided March 17, 1989

Rehearing denied March 29, 1989

John S. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

Burt & Burt, Hilliard P. Burt, Terry J. Marlowe, for appellees.

I am authorized to state that Chief Judge Carley joins in this dissent.


author: Carley, Chief Judge. Sognier, Judge,

text:
    77821.
    GRAY v. THE STATE.
    (381 SE2d 312)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant enumerates the general grounds. The evidence, construed most strongly in support of the guilty verdict, showed that, in a transaction arranged by a confidential informant, appellant sold 55.5 grams of cocaine to a police officer. The evidence was more than sufficient to authorize a rational trior of fact to find proof of appellant’s guilt of violating OCGA § 16-13-31 beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates as error the denial of his motion to compel disclosure of the identity of the confidential informant who had arranged the sale of the cocaine. The contention is that disclosure was essential in order to secure the informant as a witness in connection with appellant’s entrapment defense. See generally Moore v. State, 187 Ga. App. 387, 388 (2) (370 SE2d 517) (1988).

“ ‘The mere invocation of the word “entrapment” does not magically create a viable defense.’ [Cit.] ‘The proper ruling will depend upon the specific facts and circumstances of each individual case.’ [Cit.]” State v. Royal, 247 Ga. 309, 312 (2) fn. 4 (275 SE2d 646) (1981). “In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must in induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.]” Keaton v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984). Appellant testified that, after his initial refusal, he eventually complied with the informant’s repeated requests to make the sale of cocaine. Appellant also testified that he had never sold drugs before. Nevertheless, appellant further freely testified that, on this occasion, he sold the drugs for the money. Appellant was asked if he sold the drugs “simply to make money yourself?” He responded: “Yes. Because I needed [money] at the time, and I figure if I do a favor for someone to get something for his personal need, personal use, or whatever you going to use it for ... . [A]t the time I needed the money.” More importantly, appellant testified that he “would have done this for any other friends in that neighborhood [who] had asked [him and who] would have been willing to pay [him] the same amount. . . .” This evidence clearly shows that the sale was not the result of any undue coercion and that appellant was predisposed to sell drugs for money. As in Jones v. State, 154 Ga. App. 21, 25 (2) (267 SE2d 323) (1980), “[appellant's testimony does not show he was induced, by undue persuasion, or deceitful means, in an overall design of law enforcement people, to do what he otherwise had no predisposition to do and would not have done. [Cits.] Appellant’s testimony falls short of evincing those circumstances which have been found to raise the entrapment defense. [Cits.]”

No authority supports the proposition that, notwithstanding an admission that he was amenable to selling drugs to anyone for money, a defendant’s otherwise unrebutted claim of no previous criminal activity is sufficient probative evidence of his non-predisposition to engage in such activity. Compare Bennett v. State, 158 Ga. App. 421 (1) (280 SE2d 429) (1981). First-offender status may be relevant to appellant’s sentencing, but it has no bearing on the issue of his guilt or innocence of the crime for which he is on trial. Assuming that this was appellant’s first sale of drugs, he had the personal misfortune of having his initial criminal venture foiled by an informant. Such misfortune does not, however, equate to a viable entrapment defense. “[T]he mere fact that the defendant was persuaded ... to engage in practices he knew to be criminal simply to ‘make a lot of money’ does not constitute entrapment; if it did, practically every offender could find and rely on such incidents in his own past.” Leonardi v. State, 154 Ga. App. 402, 405 (1) (268 SE2d 380) (1980).

If it was error to fail to disclose the identity of the informant in this case, it would be error to fail to disclose the identity of the informant in almost every case. To grant appellant’s motion would compromise the confidentiality of the informant simply because appellant testified that he sold the drugs for money and would create a viable defense based upon appellant’s mere invocation of the word “entrapment” when, under the specific facts and circumstances of this case, no such viable defense was raised. The trial court did not err in denying appellant’s motion to disclose the identity of the confidential informant.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.

Sognier, Judge,

dissenting.

I respectfully dissent. While I agree with the majority’s conclusion that the evidence was sufficient to support the verdict, I cannot concur in Division 2 because I find appellant raised the defense of entrapment, and that under the particular circumstances of this case disclosure of the identity of the informant, the only witness to the alleged entrapment, should have been compelled.

The evidence adduced at trial revealed that the confidential informant had been dispatched by an Atlanta police investigator to locate drug dealers in the neighborhood at issue. Appellant testified without rebuttal that the informant approached him and solicited a cocaine sale, making repeated requests in response to appellant’s initial refusal. Although this was the only evidence of undue coercion, evidence also was adduced indicating that appellant was not predisposed to sell cocaine, as appellant testified that he had never sold drugs before, a statement not challenged by the State. See Bennett v. State, 158 Ga. App. 421, 422 (1) (280 SE2d 429) (1981); Hall v. State, 136 Ga. App. 622, 623 (222 SE2d 140) (1975); compare Martin v. State, 175 Ga. App. 704, 705 (2) (334 SE2d 32) (1985). Appellant also stated that he sold the cocaine only upon the repeated and insistent requests from the informant, and that he did not even have any cocaine but had to obtain it from someone else. Conversely, he also stated that he was in severe financial difficulty and was enticed by the promise of a $300 cut from the sale. Thus, although the evidence did not demand a finding of entrapment, a question of fact was presented for determination by the jury, see State v. Royal, 247 Ga. 309 (275 SE2d 646) (1981); see also Marshall v. State, 143 Ga. App. 249, 251-253 (1) (237 SE2d 709) (1977), and the burden was on the State to disprove the defense beyond a reasonable doubt. Coleman v. State, 141 Ga. App. 193, 194 (2) (233 SE2d 42) (1977).

Decided March 16, 1989

Rehearing denied March 29, 1989

A. Nevell Owens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, Charles Smegal, Assistant District Attorneys, for appellee.

“[W]here the informer is a witness or participant [in the alleged crime], a request for disclosure requires the trial court to balance the benefits of disclosure to the defendant against the resulting harm to the government. Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957); [cit.] ‘Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informant’s testimony, and other relevant factors.’ Roviaro, supra at 62. Where a defendant charges that a confidential informant has entrapped him outside the presence of any other witnesses, Roviaro would ordinarily require disclosure of the informant’s identity, since the defense of entrapment would rest upon allegations which only the informant could confirm or deny.” (Footnote omitted; emphasis supplied.) Royal, supra at 312 (2).

I find this case to be controlled by Royal, and accordingly agree with appellant that under the circumstances the trial court should have compelled the disclosure of the informant’s identity. Unlike the defendant in Royal, here appellant filed the requisite motions, informed the court he intended to rely on an entrapment defense, and presented evidence of same. He properly sought disclosure of the identity of the informant, who was the only witness to the initiation of the cocaine sale and thus the only person who could confirm or deny appellant’s claim of entrapment. Had the informant’s name been provided to appellant, he then could have subpoenaed the informant for trial testimony central to the entrapment issue. The cases cited by the majority, Leonardi v. State, 154 Ga. App. 402 (268 SE2d 380) (1980) and Jones v. State, 154 Ga. App. 21 (267 SE2d 323) (1980), are not controlling here because in each of those cases this court considered whether the evidence regarding entrapment required a directed verdict of acquittal, not whether a jury question had been presented on the entrapment issue. Leonardi, supra at 403-405 (1); Jones, supra at 24-25 (2). Further, there was no question in either case of availability of the identity of the sole witness to the alleged entrapment, as either the informant or another witness to the event at issue testified at each trial.

As I find the trial court’s failure to compel the disclosure of the informant’s identity was harmful error, I would reverse. See generally Moore v. State, 187 Ga. App. 387, 392-393 (370 SE2d 511) (1988).


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77889.
    MITCHELL v. MITCHELL.
    (381 SE2d 84)
   Sognier, Judge.

Exie Harrell Mitchell, as executrix of the estate of her husband, Johnnie Mitchell, brought suit against Harriet Mitchell on a promissory note executed in favor of the decedent. The jury returned a verdict for Harriet Mitchell, but the trial court granted judgment for Exie Mitchell notwithstanding the verdict, and Harriet Mitchell filed this appeal.

The evidence adduced at trial disclosed that on July 15, 1981, appellee’s decedent sold two riverfront lots to his son, John Lewis Mitchell, and his son’s wife, appellant, in exchange for a $10,000 down payment and a promissory note for $25,000 executed by both purchasers. The note was due on July 15, 1987 although the parties verbally agreed that annual payments would be made. Appellant testified that when she and her husband made their first payment of $1,500 on July 7, 1982, Johnnie Mitchell asked them to sign a new promissory note reflecting the reduced balance outstanding, and that in response John Lewis Mitchell executed a new note as sole obligor. Appellant further testified that prior to Johnnie Mitchell’s death in August 1985, John Lewis Mitchell followed the same procedure for three subsequent payments totalling $5,000, each time giving his father a new note on which he was sole obligor for the remaining balance. John Lewis Mitchell was killed in an airplane crash in May 1986, and on August 11, 1987, appellee filed this action to recover the balance of $18,500 owed on the July 1981 note executed by John Lewis Mitchell and appellant.

1. Appellant contends the trial court erred by granting judgment n.o.v. to appellee, as sufficient evidence was adduced to authorize the jury to find a novation releasing appellant from the 1981 note. The trial court found there was no evidence that the notes John Lewis Mitchell executed as sole obligor were supported by valid consideration. However, as there was evidence sufficient to authorize the jury to conclude that one or more of these notes were supported by valid consideration in the form of settlement of a family dispute, we find the grant of judgment n.o.v. to be in error.

The evidence adduced at trial revealed that the sale of the subject property to John Lewis Mitchell and appellant had led to considerable dissension within the Mitchell family. John Lewis Mitchell’s siblings, Sara Reed and Harold Mitchell, both testified that they were unhappy about the sale of the property because it previously had been available for use by all family members, and Reed stated that she did not want appellant to profit from her ownership of the property. Appellant testified that Reed and Harold Mitchell were so angry after the sale that they did not speak to John Lewis Mitchell for months. Both appellant and her sister also testified that John Lewis Mitchell desired to restore family harmony, and in order to do so he and his father agreed to remove appellant’s name from the note arising out of the property transfer, and accordingly one or more new notes were executed with John Lewis Mitchell as the sole obligor. Although the trial court, relying on Irby v. Brooks, 246 Ga. 794 (273 SE2d 183) (1980), held that this testimony was untrustworthy hearsay, such testimony regarding the declarations of a decedent has since been held to be admissible, and assessment of the credibility of the testimony is left to the jury. Swain v. C & S Bank, 258 Ga. 547 (372 SE2d 423) (1988).

“Our . . . courts have favored the furtherance of compromise agreements and the settlement of family disputes. [Cit.] ‘An agreement to settle a family controversy will not be considered voluntary and without consideration, but will be enforced in equity as a fair family arrangement independent of its being a compromise of doubtful rights. . . [.] To render valid such compromise agreements it is not essential that the matter should be in real doubt; but it is sufficient if the parties should consider it so far doubtful as to make it the subject of compromise.’ ” Holsomback v. Caldwell, 218 Ga. 393, 395-396 (128 SE2d 47) (1962). Once the existence of a family settlement is established, it will be enforced without an inquiry “ ‘into the adequacy or inadequacy of the consideration.’ [Cit.]” Hancock v. Hancock, 223 Ga. 481, 487 (3 (b)) (156 SE2d 354) (1967). Although enforcement of family settlement agreements is an equitable remedy, this court has jurisdiction over equitable defenses, Alderman v. Crenshaw, 208 Ga. 71, 72 (3) (65 SE2d 178) (1951), overruled on other grounds, Wiley v. Wiley, 233 Ga. 824, 826 (1) (213 SE2d 682) (1975), and thus we may consider whether execution of a family settlement agreement provided consideration for the later notes.

Construing the evidence to uphold the verdict, we find the jury was authorized to conclude that John Lewis Mitchell, as sole obligor, executed one or more notes in favor of his father, the consideration for these notes being the desire of father and son to settle the family controversy that had arisen after Johnnie Mitchell’s sale of the subject property to his son and appellant, see Belt v. Lazenby, 126 Ga. 767, 771-772 (2, 3) (56 SE 81) (1906), thereby releasing appellant from her obligation on the note sub judice. See OCGA § 13-4-5; see also Leasing Systems v. Easy Street, 161 Ga. App. 756, 757 (1) (288 SE2d 879) (1982). We need not inquire whether this family settlement agreement fully accomplished the objective of restoring harmony within the Mitchell family because proof of execution of an agreement made to resolve a family controversy is all that is needed to establish the existence of consideration for enforcement of the obligation thereunder. See Hancock, supra at 487. This result does not leave appellee without a remedy because she has the option of bringing an action on the subsequent notes against the estate of John Lewis Mitchell.

Accordingly, we reverse with direction that the jury’s verdict in favor of appellant be reinstated.

2. Our decision in Division 1 renders moot appellant’s remaining enumeration of error.

3. In view of our decision in Division 1, appellee’s motion for damages for frivolous appeal is denied.

Judgment reversed with direction.

Banke, P. J., Birdsong, Pope and Benham, JJ., concur. Carley, C. J., Deen, P. J., and Beasley, J., dissent. McMurray, P. J., disqualified.

Deen, Presiding Judge,

dissenting.

The appellant asserted the defenses of novation and accord and satisfaction. The trial court granted judgment for the appellee nowithstanding the verdict, finding no competent evidence to support those defenses, and, in any event, a total lack of consideration for either a novation or an accord and satisfaction.

A novation must be supported by a new consideration. OCGA § 13-4-5 generally; Maguire v. Ivey, 212 Ga. 151 (91 SE2d 35) (1956). In the instant case, the only difference between the original note sued upon the subsequent notes allegedly executed solely by John Lewis Mitchell at the time of the payments to Johnnie Mitchell was the omission of the appellant as one of the obligors. Quite simply, no new consideration was given.

“Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction of the former agreement, where it is so expressly agreed by the parties; and, without such agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former agreement.” OCGA § 13-4-101; Kent v. First Nat. Bank, 57 Ga. App. 751 (196 SE 103) (1938). Additionally, “[a]n accord and satisfaction must be of some advantage, legal or equitable, to the creditor or it shall not have the effect of barring him from his legal rights under the original agreement.” OCGA § 13-4-102.

In the instant case, there was no evidence that Exie Mitchell was even empowered, at the time of John Lewis Mitchell’s execution of the two notes in favor of his siblings, to agree to an accord and satisfaction on behalf of the estate of Johnnie Mitchell. Moreover, the arrangement, which neither gave the estate the benefit of any payment nor increased the estate, could hardly be said to result in any advantage or benefit to the estate. Accord and satisfaction is an affirmative defense, and the party asserting it has the burden of proof. McCullough v. Mobiland, Inc., 139 Ga. App. 260 (228 SE2d 146) (1976). The appellant’s proof in this case failed to raise an issue of fact as to the creditor’s express agreement or the existence of a new consideration.

Decided March 10, 1989

Rehearing denied March 29, 1989

Hurt, Pfeiffer & Hyman, Thomas H. Hyman, for appellant.

The majority opinion confuses the factual posture of this case. As discussed above, the appellant asserted two defenses, novation and accord and satisfaction. The claim of novation related to the alleged agreement between Johnnie Mitchell and John Lewis Mitchell to omit Harriet Mitchell as obligor on the alleged renewal notes. The claim of accord and satisfaction concerned John Lewis Mitchell’s subsequent sale of a portion of the property to his niece and purported payment of the remaining indebtedness by executing promissory notes to the anticipated heirs of Exie Mitchell. The testimony regarding John Lewis Mitchell’s motivation to restore family harmony related only to this subsequent sale to the niece and was no consideration whatsoever in the alleged earlier transaction between Johnnie Mitchell and John Lewis Mitchell when the agreement to remove Harriet Mitchell as obligor supposedly occurred.

Concerning the alleged novation, the appellant’s evidence was that John Lewis Mitchell requested that Harriet Mitchell be omitted as obligor on the renewal notes because he wanted to spare her the familial acrimony over the father’s sale of the property to John Lewis Mitchell and Harriet Mitchell. Not even the appellant claimed that his motive was to restore family harmony by doing so, and for good reason: removal of Harriet Mitchell as obligor obviously would not eliminate the stated basis for the family’s ill-will towards her, i.e., her ownership of the property, because her name remained on the warranty deed. Indeed, if anything, omission of Harriet Mitchell as obligor on the promissory note, eliminating her obligation to pay for her ownership interest, logically would exacerbate any bad feelings held by the family towards Harriet Mitchell.

In summary, the trial court correctly concluded that the evidence totally failed to show either novation or accord and a satisfaction. Grant of judgment for the appellee notwithstanding the verdict was proper. Accordingly, I must respectfully dissent from the majority opinion’s contrary conclusion.

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

Gary C. McCorvey, Richard English Thomas, for appellee.


text:
    77894.
    HOWE v. ROBERTS et al.
    (381 SE2d 117)
   Carley, Chief Judge.

On February 8, 1980, appellant-plaintiff purchased a home from appellee-defendant William Douglas Roberts & Associates, Inc. (Corporation). The Corporation extended to appellant an express warranty “for a period of at least 1 year following closing.” On February 4, 1981, appellant mailed a registered letter detailing the problems that he had experienced with the house. This letter was received on February 9, 1981.

On February 5, 1987, appellant filed a breach of warranty suit in magistrate court. The suit was filed against appellee-defendant William Douglas Roberts, who is the president of the Corporation. On March 11, 1987, however, appellant amended his pleadings so as to add the Corporation as a party-defendant to the proceedings. The magistrate court ultimately found in favor of appellant as against the Corporation, but it dismissed the action as against Roberts.

After a de novo appeal to the state court, a counterclaim was filed against appellant for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The state court granted summary judgment in favor of appellees as to appellant’s breach of warranty claim and denied appellant’s motion to dismiss the Yost counterclaim. Appellant appeals from these orders.

1. It was not error to grant summary judgment in favor of Roberts. The record shows that the warranty was extended by the Corporation, not by Roberts, and that appellant offered no evidence whereby a piercing of the corporate veil would be authorized. See Amason v. Whitehead, 186 Ga. App. 320 (367 SE2d 107) (1988).

2. Summary judgment was granted in favor of the Corporation based upon the running of the statute of limitation. Appellant enumerates this ruling as error.

“[T]he six year statute of limitation applies and commence[s] to run from the date that [the Corporation] was notified by [appellant] of the alleged defects in the construction . . . .” Benning Constr. Co. v. Lakeshore Plaza Enter., 240 Ga. 426, 429-430 (241 SE2d 184) (1977). Assuming without deciding that appellant’s initiation of his action on February 5, 1987, was within the statute of limitation, the Corporation was not added as a party-defendant to the action until March 11, 1987, at which time the statute of limitation had clearly run. Accordingly, unless the amendment adding the Corporation as a defendant relates back to the date of the filing of the original complaint, the Corporation’s statute of limitation defense would be good.

The Civil Practice Act is not authority for the relation-back of the amendment. OCGA § 9-11-15 (c) does authorize, under certain circumstances, the relation-back of an amendment which changes or adds a party-defendant to an action. However, the legislature has determined that it is the provisions of OCGA § 15-10-40 et seq. which “shall govern civil proceedings in the magistrate court” and that such proceedings “shall not be subject to Chapter 11 of Title 9, the ‘Civil Practice Act.’” OCGA §§ 15-10-40; 15-10-42.

The Civil Practice Act cannot possibly be construed as a statute which is in pari materia with OCGA § 15-10-42. OCGA § 15-10-42 expressly states that “[proceedings in the magistrate court shall not be subject to Chapter 11 of Title 9, the ‘Georgia Civil Practice Act.’ ” (Emphasis supplied.) “The two statutes are not to be construed together. They are not in pari materia. ‘Statutes in pari materia are those which relate to the same person or thing or the same class of person or thing, or which have a common purpose.’ [Cit.]” Maynard v. Thrasher, 77 Ga. App. 316, 319 (48 SE2d 471) (1948). Regardless of the legislative intent underlying enactment of the Civil Practice Act, the legislative intent underlying the subsequent enactment of OCGA § 15-10-42 is to provide that there is no commonality between OCGA § 9-11-1 et seq. and the applicable procedure in magistrate courts. Moreover, even assuming that the two statutes were in pari materia, it would nevertheless be erroneous to construe them so as to find the provisions of OCGA § 9-11-15 (c) to be applicable in magistrate court proceedings. “ ‘[Statutes in pari materia may not be resorted to where the language of the statute under consideration is clear . . . .’ [Cit.]” Butterworth v. Butterworth, 227 Ga. 301, 304 (3a) (180 SE2d 549) (1971).The language of OCGA § 15-10-42 that magistrate court proceedings shall not be subject to the Civil Practice Act could not be any clearer.

There is a general right to amend pleadings in the magistrate court which predates and is not dependent upon any provision of the Civil Practice Act. See Sikes v. Hurt & Cone, 18 Ga. App. 197 (1) (89 SE 181) (1916). However, the present case does not concern the general right to amend pleadings in the magistrate court. It concerns the relation-back of an amendment adding a party-defendant. OCGA § 9-11-15 (c) cannot serve as authority for the relation-back of such an amendment in a magistrate court proceeding unless the clear and unambiguous provisions of OCGA § 15-10-42 are ignored. Other than the inapplicable provision of OCGA § 9-11-15 (c), no authority has been cited for holding that such an amendment relates back. Our own research indicates that no such authority exists. If there is no authority for the relation-back of such an amendment in a magistrate court proceeding, then the amendment of March 11, 1987, pursuant to which the Corporation was added as a party-defendant after the statute of limitation had run, is totally ineffective. The state court correctly granted the Corporation summary judgment based on the running of the statute of limitation.

3. Appellant’s motion to dismiss the Yost counterclaim which was added by amendment in the state court was denied. This ruling is enumerated as erroneous. Appellant urges that the counterclaim should have been dismissed because it had not been asserted as a compulsory counterclaim in the magistrate court.

As noted in Division 2, there is a general right to amend in the magistrate court. Accordingly, if there was no impediment to amending to add the Yost counterclaim in the magistrate court, there was no impediment to amending to add the Yost counterclaim in the de novo appeal proceedings in the state court. See generally Smith v. Goodwin, 84 Ga. App. 319 (1) (66 SE2d 169) (1951). We know of no such impediment. Accordingly, the trial court did not err in denying appellant’s motion to dismiss.

Judgments affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.

Sognier, Judge,

dissenting.

The majority has construed OCGA § 15-10-42 to prohibit the application of the principles of the Civil Practice Act in magistrate court proceedings. Recognizing that because some procedure, other than the limited matters set forth in OCGA § 15-10-1 et seq., must be used to guide magistrate court proceedings, the majority has also decided that the “general rights” in common law practice pre-existing the CPA are now to be applied in magistrate courts. Because the majority misconstrues OCGA § 15-10-42 and because that mistaken construction leads to the ill-considered application of common law practice to magistrate court proceedings, I dissent.

Both OCGA § 15-10-42 and OCGA § 9-11-1 address the same subject matter, the effect of the CPA on courts of this state, and therefore must be read in pari materia. Butterworth v. Butterworth, 227 Ga. 301, 303-304 (180 SE2d 549) (1971). OCGA § 9-11-1 provides that the CPA “governs” procedure in courts of record but only “applies” to courts which are not courts of record “to the extent that no other rule governing a particular practice or procedure of such courts is prescribed by general or local law.” OCGA § 15-10-40 provides that Article 3 of Chapter 10 “governs” civil proceedings in magistrate courts, but that article contains only a bare sketch of procedural matters applicable to magistrate courts. See also the Uniform Rules for the Magistrate Courts. OCGA § 15-10-42 states that proceedings in magistrate courts “shall not be subject to” the CPA but fails to set forth what procedure will be applicable.

The only reasonable principle of procedure to be applied to magistrate court proceedings is the procedure applicable to, though not necessarily governing, every other court in this State, the CPA. When OCGA § 9-11-1 is harmonized with Chapter 10 of Title 15, it is clear that the legislative intendment was that magistrate courts would not be bound by the strict technical requirements of the CPA, but that the principles of the CPA would be applied in those areas not specifically addressed by the provisions in OCGA § 15-10-1 et seq.

A statute should not be construed to lead to an absurd result. See Ga. Turkey Farms v. Hardigree, 187 Ga. App. 200, 203 (369 SE2d 803) (1988). The majority’s interpretation of OCGA § 15-10-42 as excluding the application of the CPA not only needlessly conflicts with OCGA § 9-11-1, it leads to an absurd result by replacing the modern principles of the CPA with the complex, uncodified, and antiquated procedures of common law practice and injecting this practice into magistrate courts, the one court where simple and non-technical procedure is essential. The majority deprives litigants in magistrate courts of all the advantages unique to the CPA and allows them only those “general rights” which pre-existed the passage of the CPA. Although members of this Court may well remember the dramatic changes the CPA introduced into this State’s courts, I must point out that because the CPA has been the law in this State for 23 years, there are many magistrate judges and attorneys who do not remember what “general rights” existed prior to the CPA. Magistrate courts are left bereft of guidance as to what procedural matters now considered “standard” are actually “unique” to the CPA and are thus rendered inapplicable in magistrate court proceedings by the majority’s opinion. Even if demurrers and nonsuits do not once again become typical procedural vehicles in magistrate courts, because common law pleading was far from being common sense pleading, parties will have no way to recognize that while they have a “general right” to amend, they have no such right to relate that amendment back to the filing of the pleadings because the procedural principle in OCGA § 9-11-15 (c) was not recognized prior to 1966.

To construe OCGA § 15-10-42 as excluding from magistrate courts the general principles of pleading applicable in every other court in this State and then to fill the void made by this exclusion with procedures discernable only to those who can remember pleading in this State before 1966 and virtually inaccessible to those who do not, defeats the purpose of magistrate courts, which is to provide a simple non-technical forum for lay persons seeking to resolve their differences. Because the majority refuses to construe OCGA § 15-10-42 in pari materia with the one statute which clarifies its meaning, and, by refusing to so construe OCGA § 15-10-42, plunges magistrate courts “backward into the labyrinth of common law pleading, from which we have so recently escaped [.] [cit.]” Gorrell v. Fowler, 248 Ga. 801 (1) (286 SE2d 13) (1982), I dissent.

Decided March 17, 1989

Rehearing denied March 29, 1989

Lawson & Davis, Lela L. Smith, for appellant.

William R. L. Watson, for appellee.


author: Pope, Judge.

text:
    77928.
    BROWN v. WILLIAMS.
    (381 SE2d 308)
   Pope, Judge.

Appellant Brown brought this action for negligence against appellee Williams for injuries Brown received while riding in appellee’s boat on Lake Lanier. The case was tried before a jury, who returned a verdict in favor of appellee Williams.

Appellant argues that the trial court erred in charging the jury on the concept of avoidance of consequences pursuant to OCGA § 51-11-7. The court charged from the pattern jury instructions as follows: “Now, if the Plaintiff, by the exercise of ordinary care, could have avoided the consequences to himself caused by the Defendant’s negligence, the Plaintiff is not entitled to recover. In other cases, the Defendant is not relieved even though the Plaintiff may in some way have contributed to the injury sustained. However, the Plaintiff’s duty to exercise ordinary care to avoid the consequences of the Defendant’s negligence does not arise until the Defendant’s negligence exists; and the Plaintiff knew, or in the exercise of ordinary care should have known, of such negligence.” (Indention omitted.)

Appellant does not quarrel with the language of the charge, but rather argues that there was no evidence to support it. In support of this position, appellant advances two arguments. First, he argues because appellee did not present any evidence he failed to carry his burden of proof regarding the affirmative defense of avoidance of consequences. There is no merit to this argument.

“The phrase ‘burden of proof’ is ambiguous; it is used indiscriminately to refer either to the burden of persuasion or to the burden of producing evidence.” W. Agnor, Agnor’s Ga. Evidence, § 17-1 at 449 (2d ed. 1986). “The burden of persuasion is the duty of establishing the issues in the case as laid or the ultimate risk of jury doubt. The burden of producing evidence is the duty of going forward with the presentation of evidence or of making a prima facie case.” Id. § 17-2 at 450.

“It should be noted that a party who fails to introduce sufficient evidence to carry the burden of producing evidence does not necessarily incur an adverse ruling, and the case may be allowed to go to the jury. Furthermore, the evidence introduced by both sides up to that point is to be considered in determining the sufficiency of the evidence at any given point of time during the proceedings, and the whole of the evidence introduced at the trial will be considered when the question comes before the appellate court. The plaintiff’s evidence may help to make out the defendant’s defense or to disprove the plaintiff’s case, and the defendant’s evidence may likewise help to prove the plaintiff’s case.” Green, Ga. Law of Evidence, § 22 at 58 (3d ed. 1988).

The evidence at trial showed that appellant, appellee and their wives were together in appellee’s inboard motor boat. Appellant was seated in the bow of the boat, with appellee driving and the other passengers seated at the stern. The boat proceeded slowly, about 4 or 5 miles per hour for fifteen to twenty minutes. Appellant testified that the lake was full of boats traveling in all directions and that the water was very rough. At his wife’s insistent urging, appellee increased the speed of the boat to about 15 miles per hour. Appellant was aware of the increased speed and testified they proceeded that way for a few minutes before the accident. Appellant was injured when the boat struck a large wake at the increased speed and appellant was tossed up and landed violently breaking his back. None of the others in the boat were injured. Appellant could not remember if he had been holding onto the rail next to the seat. Appellee, called by appellant for cross-examination, admitted that the increased speed was a mistake, and that had he been going slower, the accident probably would not have occurred.

From this appellant argues that not only does the evidence not support a charge on avoidance of consequences, but that appellant should have been granted a directed verdict of liability. We cannot agree with either argument. “Questions of negligence are peculiarly for the jury. It is rare that the court can say as a matter of law that a given state of facts demands a finding that the person was guilty of such negligence as would authorize a recovery of damages against him, or of such negligence as would defeat a recovery of damages on account of negligence of another person.” Collins v. Augusta-Aiken R.&c. Corp., 13 Ga. App. 124, 128 (78 SE 944) (1913).

Appellant’s theory is that appellee was operating the boat too fast for conditions, and thus was negligent. In effect, appellee admitted this at trial, but then set up the defense of avoidance from testimony produced during appellant’s case — appellant was aware of the rough water, the speed of the boat, and the heavy traffic, yet did nothing to anchor himself more securely, or to move to a more stable area of the boat. This was a matter to be resolved by the jury. The charge on avoidance was proper. Stroud v. Woodruff, 183 Ga. App. 628 (2) (359 SE2d 680) (1987). The case of Carrandi v. Sanders, 188 Ga. App. 562 (373 SE2d 661) (1988), is clearly distinguishable. There, plaintiff was driving a car within the speed limit in her lane, when defendant drove directly into her path causing injury. In that case, defendant’s act of negligence and the consequences were nearly simultaneous. In the present case, there is evidence of several minutes between appellee’s admitted mistake of driving the boat too fast for conditions and the collision with the wake resulting in appellant’s injuries. The evidence was sufficient to authorize the court’s charge and the jury’s verdict.

Decided March 13, 1989

Rehearing denied March 29, 1989

Norton, Pennington, Goetz, Cronkright & Prior, Charles M. Goetz, Jr., for appellant.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, David A. Sapp, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    A89A0314.
    GREENE v. THE STATE.
    (381 SE2d 310)
   Beasley, Judge.

Greene appeals his conviction and sentence for public indecency, OCGA § 16-6-8 (3), by appearing nude in the presence of a teenage female babysitter in the bedroom and bathroom at his home. The jury found him not guilty of child molestation, OCGA § 16-6-4, and enticing a child for indecent purposes, OCGA § 16-6-5. Greene does not contest the findings that he made a lewd appearance in a state of complete nudity to a girl who was not a member of his family or household. His sole contention is that the trial court erred in failing to grant a directed verdict of acquittal because neither his marital bedroom nor the bathroom in his home was a “public place” within the meaning of OCGA § 16-1-3 (15).

OCGA § 16-1-3 (15) broadly defines “public place” as “any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s family or household.” “Thus, it is clear that one’s premises are not necessarily circumscribed from inclusion as a ‘public place.’ Only areas of privacy are excluded.” Ridley v. State, 176 Ga. App. 669, 671 (337 SE2d 382) (1985). “[W]hat constitutes a ‘public place’ within the meaning of our statute, is a question of fact which must be proved or disproved by the evidence in each case.” Rushing v. State, 133 Ga. App. 434, 435 (1) (211 SE2d 389) (1974).

The evidence viewed so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed that Greene brought sixteen-year-old Valerie, her thirteen-year-old friend, Cynthia, and Valerie’s young brother and sister to his home ostensibly to babysit. When they arrived, Greene’s wife and children were not home. Greene told the girls that his family probably had gone grocery shopping. A note on the table indicated that Greene’s wife had gone to her mother’s house and would be back soon. Greene went to shower in the bathroom off his bedroom.

Valerie wanted to use a telephone and looked in the kitchen, where she had seen one previously. She did not find it and told Greene before he got in the shower that she needed a phone. Greene told Valerie that she could use the one in his bedroom.

Valerie made the call and Cynthia went to check on her. Greene, nude, went to the bathroom door and asked Cynthia to bring some razor blades. When she did, he walked out for them. He was still nude and made no attempt to cover himself. He then asked Valerie to bring some iced tea, and when she did he again appeared nude. The girls went into the living room and then checked on the young children. Greene asked the girls to make telephone calls to determine whether his wife and children were on the way home. They waited for Greene to go back into the bathroom and then went into the bedroom and sat on the bed to phone. While they called, Greene came out of the bathroom numerous times and walked around nude in front of them. Still nude, he also laid down on the bed behind the girls. The girls were unable to reach anyone at the telephone numbers given by Greene.

About an hour and a half later, the teenagers told Greene that the small children were tired and wanted to go home. Greene told them they could clean up his son’s room if they wanted to and they could make up his (Greene’s) bed so that he could pay them for something. Valerie was in Greene’s bedroom helping to make the bed when Greene again walked out of the bathroom completely unclothed.

In these circumstances Greene’s bedroom and bath fit within the meaning of “public place” as defined by OCGA § 16-1-3 (15), so as to authorize his conviction for public indecency.

Greene argues that the marital bedroom has been held to be a “sacred precinct” of privacy by the United States Supreme Court and protectable as such. Griswold v. Connecticut, 381 U. S. 479, 485 (85 SC 1678, 14 LE2d 510) (1965). While that is true, Greene by his own behavior removed the barrier and converted his bedroom and bath from a private zone to a public place, where his nudity might reasonably be expected to be viewed by people other than members of his family or household. It is not necessary that the place be visible to members of the public who are outside of it, see McGee v. State, 165 Ga. App. 423, 424 (2) (299 SE2d 573) (1983), although in Hester v. State, 164 Ga. App. 871 (298 SE2d 292) (1982), and in Collins v. State, 160 Ga. App. 680 (288 SE2d 43) (1981) (non-precedential), it was.

Decided March 14, 1989

Rehearing denied March 29, 1989.

Joseph E. Cheeley III, Joseph E. Cheeley, Jr., for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johnstono, Jr., Debra K. Turner, Assistant District Attorneys, for appellee.

A directed verdict of acquittal was not required.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    77383.
    BRINSON v. THE STATE.
    (381 SE2d 292)
   Beasley, Judge.

Defendant appeals his conviction of aggravated child molestation, OCGA § 16-6-4 (c), and two counts of child molestation, OCGA § 16-6-4 (a). Four errors are enumerated: allowing the State to introduce evidence of similar crimes in violation of USCR 31.1; allowing the State to place defendant’s character in issue; the denial of the motion for new trial based upon ineffective assistance of counsel; permitting defendant’s statements to be introduced into evidence.

1. Notice of appeal was filed after defendant’s amended motion for new trial was denied but before it was entered by filing with the clerk. OCGA § 5-6-31. While not timely as to the original conviction and premature pending final disposition of the motion for new trial, the appeal became effective upon entry of the adverse judgment. Shirley v. State, 188 Ga. App. 357, 361 (1) (373 SE2d 257) (1988).

2. The victim first mentioned a prior occurrence between herself and defendant early in her testimony. She again referred to a prior incident and was asked by the State’s attorney: “What did he [defendant] say the first time?” Defense counsel then objected on the ground of irrelevancy. The trial court permitted a response and instructed the jury that the sole purpose was to show the victim’s state of mind. No issue was raised below as to a failure to comply with USCR 31.1.

An objection that certain evidence is “irrelevant” is insufficient to show reversible error. Hamilton v. State, 185 Ga. App. 536, 539 (6) (365 SE2d 120) (1987), citing Phillips v. State, 172 Ga. App. 864, 865 (3) (324 SE2d 807) (1984).

There are also two other reasons why this enumeration of error fails. 1) There is no harmful error in the admission of evidence where substantially the same evidence was admitted without objection. Robinson v. State, 229 Ga. 14, 16 (1) (189 SE2d 53) (1972). 2) “[W]here an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (a) (275 SE2d 142) (1980).

3. During the young victim’s testimony as to how long she had known defendant who was her sister’s husband she stated “not long, but when they were dating, or whatever you call it, most of the time they were fighting or either fussing.” The trial court promptly admonished the witness: “Don’t go into that.” Defense counsel made no objection.

Later the victim was cross-examined on whether defendant had ever cursed her, or only her sister, she answered only the latter, and whether the cursing of her sister frightened her. When she said it did, she was asked why. She testified she was frightened because “when he curses her usually he ends up hitting her.” Again, no objection was interposed. Defendant now urges that this testimony placed his character in evidence by the introduction of other crimes.

“Errors not raised at trial will not be considered and ruled on by this court on appeal.” Brown v. Thomas, 257 Ga. 68, 69 (1) (354 SE2d 830) (1987).

4. Defendant complains that certain statements were improperly admitted in evidence because he received no Miranda [Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)] warnings before making them.

“A person is not entitled to Miranda warnings as a matter of right, even though that person is a suspect, unless that person had been taken into custody or has been deprived of freedom of action in another significant way.” Woods v. State, 242 Ga. 277, 279 (2) (248 SE2d 612) (1978), citing Beckwith v. United States. 425 U. S. 341 (96 SC 1612, 48 LE2d 1) (1976). Accord Hardeman v. State, 252 Ga. 286, 288 (1) (313 SE2d 95) (1984). Although the focus of the investigation may be on defendant, he must also be in a custodial situation for Miranda to apply. Beckwith, supra at 347. Shy v. State, 234 Ga. 816, 818 (I) (218 SE2d 599) (1975). Such a situation was missing here and the trial court did not err in finding that the statements of defendant were admissible without Miranda warnings. Henderson v. State, 257 Ga. 434, 436 (2) (360 SE2d 263) (1987); Lobdell v. State, 256 Ga. 769, 773 (6) (353 SE2d 799) (1987).

5. Present counsel raised by amendment to the motion for new trial the question of ineffective trial counsel. On appeal he enumerates that denial on this ground was error under both the State and Federal Constitutions, although he erroneously cites Paragraph 13 rather than Paragraph 14 of the State Bill of Rights.

The national benchmark for judging ineffectiveness “must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984). As we understand it, the test consists of two components. “ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” Davenport v. State, 172 Ga. 848, 851 (2) (325 SE2d 173) (1984). Askin v. State, 178 Ga. App. 810, 811 (1) (344 SE2d 699) (1986).

Georgia is in close alignment with the federal policy. See Manus v. State, 180 Ga. App. 658 (350 SE2d 41) (1986), special concurrence at 660. Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974), which preceded Strickland, held that effective assistance of counsel means “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” Brogdon v. State, 255 Ga. 64, 68 (3) (335 SE2d 383) (1985), which postdated Strickland, emphasized: “To perform within this range, counsel must make all significant decisions in the exercise of reasonable professional judgment. The reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of 'trial, thereby eliminating the possible distortions of hindsight analysis .... The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” This was applied in Ray v. State, 183 Ga. App. 57 (357 SE2d 877) (1987).

Defendant has set forth ten instances which he contends demonstrate that he received ineffective assistance of counsel. No harm is shown as to several of these: failing to request a continuance; permitting an alternate juror to be chosen without consulting defendant; filing a motion containing inappropriate matter (a page was apparently inserted that belonged to a motion in another case); prompting the trial court’s rebuke for having spoken to a juror; unsuccessfully seeking to introduce evidence that defendant’s wife had been molested by her father; failing to submit any requests to charge and waiving the right to except to the instructions as given (there was no showing that any of the instructions given were error or what.omitted instructions should have been charged). See Pearson v. State, 182 Ga. App. 239, 240 (2) (355 SE2d 470) (1987); Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). The burden is upon appellant to show affirmatively not only error but that it was harmful. Mash v. State, 168 Ga. App. 491 (309 SE2d 673) (1983). That principle also applies to the following contentions. Appellant complains that trial counsel functioned ineffectively by not moving for a directed verdict on counts two and three because they merged into count one as part of the same transaction, and because the evidence was insufficient to authorize a conviction on any count. However, as to merger, the proof introduced showed three distinct acts, each of which constituted a separate act of child molestation. As to the evidence, it was sufficient for a rational trier of fact to have found defendant guilty beyond a reasonable doubt. Appellant was not entitled to a directed verdict.

Next is the insistence that trial counsel should have moved to suppress the introduction of the victim’s pajamas and a blanket on the ground that were obtained by an unlawful search. Both items belonged to the victim. The officer had permission to enter the premises and the items were obtained for him by the victim’s mother. The trial court considered the situation and found no “problem.” For these reasons, a motion to suppress would have been unavailing.

It is asserted that counsel failed to properly object to the admission of evidence of other crimes. We have noted this failure in Divisions 2 and 3. However, the trial court, after due consideration based upon the objection urged, found the evidence admissible to show the victim’s state of mind but only for that purpose, giving limiting instructions to the jury.

The victim’s conduct and veracity are matters concerning which the truth must be found. Cuzzort v. State, 173 Ga. App. 157, 160 (2) (d) (325 SE2d 826) (1984), affirmed 254 Ga. 745 (334 SE2d 661) (1985). Here, the minor victim’s credibility, which might be sustained by prompt reporting of the offense or by offering an explanation for the failure to do so, as well as by her reaction to and interaction with defendant, were relevant issues for the jury’s consideration. Taylor v. State, 176 Ga. App. 567, 573 (4) (a) (336 SE2d 832) (1985); Brock v. State, 183 Ga. App. 277, 278 (358 SE2d 613) (1987). Moreover, evidence of similar previous transactions is admissible to show defendant’s identity, motive, plan, scheme, bent of mind, and course of conduct, Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515) (1977), and especially in sexual offenses “ ‘to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged.’ ” Sparks v. State, 172 Ga. App. 891, 893 (3) (324 SE2d 824) (1984). Because defendant has failed to show the evidence, even if objected to, was inadmissible, the failure to properly object does not establish ineffective assistance of counsel.

Decided February 21, 1989

Rehearing denied March 30, 1989

Weaver & Weaver, George W. Weaver, Brenda T. Weaver, for appellant.

Roger Queen, District Attorney, for appellee.

In summary, we find as did this court in Crews v. State, 170 Ga. App. 104, 105 (3) (316 SE2d 549) (1984): “Although another lawyer may have conducted appellant’s defense in a different way, asked different questions, made more objections, etc., the fact that trial counsel made decisions during trial with which appellant and his current counsel now disagree does not require a finding that the original representation of appellant was so inadequate as to amount to a denial of effective assistance of counsel.” On neither of the two prongs of Strickland, supra, do we find a basis to declare a violation of defendant’s rights.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.