Berryhill v. Daly

358 Ga.App. 139

854 S.E.2d 338

BERRYHILL et al.

v.DALY et al.

A18A1089

Court of Appeals of Georgia.

January 22, 2021

Kathryn Hughes Pinckney, Brent J. Savage, Savannah, for Appellant.

Wiley A. Wasden III, Travis Dale Windsor, Savannah, for Appellee.

Phipps, Senior Appellate Judge.

In Division 1 of Berryhill v. Daly , 348 Ga. App. 221, 822 S.E.2d 30 (2018), an appeal arising from a medical malpractice action, this Court reversed the trial court's judgment, holding that the trial court erred in charging the jury on assumption of the risk. The Supreme Court of Georgia reversed our judgment in that Division. See Daly v. Berryhill , 308 Ga. 831, 843 S.E.2d 870 (2020). Therefore, we vacate Division 1 of our opinion and adopt the opinion of our Supreme Court as our own as to that Division. Divisions 2 and 3 of our original opinion remain unchanged, and Divisions 5 and 6 are now moot based on this opinion.

In Division 4 of our original opinion, this Court declined to address Berryhill's argument that the defense made an improper closing argument, finding that it related to matters unlikely to recur on retrial. See Berryhill , 348 Ga. App. at 225 (4), 822 S.E.2d 30. In light of the Supreme Court's reversal of Division 1 of Berryhill , we normally would now address this claim. See generally Turner v. State, 351 Ga. App. 600, 601, 831 S.E.2d 835 (2019) ; Wiggins v. State , 279 Ga. App. 901, 901-902, 633 S.E.2d 381 (2006). However, for the following reasons, we find that Berryhill has waived this argument.

The record in this case shows that "Shane Berryhill fainted and fell out of an 18-foot deer stand while hunting five days after undergoing major heart surgery. Berryhill and his wife ... sued his surgeon, Dr. Dale Daly, and Savannah Cardiology, ... claiming Daly's negligent prescribing caused him to faint." Daly , 308 Ga. at 831, 843 S.E.2d 870. Berryhill alleges that the defense made improper closing arguments regarding Dr. Daly's reputation, the importance of his career to him, and whether he would lie in front of his mother. Berryhill, however, made no objection to the defense's closing argument. As a result, this issue is waived. See Kelley v. Purcell , 301 Ga. App. 88, 91, 686 S.E.2d 879 (2009) ("[B]ecause Kelley did not object at the time Purcell's counsel made this argument, she waived the issue for appeal.").

Berryhill relies on Stolte v. Fagan , 291 Ga. 477, 479-483 (2), 731 S.E.2d 653 (2012), disapproved of on other grounds by Willis v. State , 304 Ga. 686, 706 n. 3, 820 S.E.2d 640 (2018), to support his assertion that this Court can review the improper closing argument despite his failure to object. However, his reliance on Stolte is misplaced. In Stolte , Stolte made an untimely objection by waiting until opposing counsel had concluded his argument. Stolte , 291 Ga. at 482 (2) (b), 731 S.E.2d 653. The Supreme Court held that "the untimeliness of Stolte's objection does not ... preclude all appellate review of this issue. Rather, when no timely objection is made, the standard for reversible error is ‘whether the improper argument in reasonable probability changed the result of the trial.’ " Id. at 483, 731 S.E.2d 653 (citation omitted; emphasis supplied). See also Auto-Owners Ins. Co. v. Dolan , 342 Ga. App. 179, 184-185 (5), 803 S.E.2d 104 (2017), and Young v. Griffin , 329 Ga. App. 413, 414-417 (2), 765 S.E.2d 625 (2014) (reviewing untimely objections to closing arguments for whether they, in reasonable probability, changed the result of the trial.)

Here, Berryhill made no objection whatsoever to this alleged improper argument. Berryhill cites to no authority, and we have found none, that would permit this Court to review this enumeration on the merits despite the complete absence of an objection. See Gates v. State , 298 Ga. 324, 328 (4), 781 S.E.2d 772 (2016) ("[B]ecause Gates did not object to the...