Williams v. Harvey

311 Ga. 439

858 S.E.2d 479

WILLIAMS

v.HARVEY et al.

S20G1121

Supreme Court of Georgia.

Decided: May 17, 2021

Powell & Erwin, William A. Erwin ; Bondurant, Mixson & Elmore, Frank M. Lowrey IV, Michael B. Terry ; McCall Williams, W. Earl McCall ; Henry Williams Law Office, Henry E. Williams ; Law Offices of Gregory Terrell Williams, Gregory T. Williams, for appellant.

Holland & Knight, Laurie W. Daniel, Matthew D. Friedlander, Jonathan B. Spital ; Swift Currie McGhee & Hiers, Roger E. Harris, Douglas L. Clayton ; Kirbo & Kendrick, Bruce W. Kirbo, Jr., for appellees.

Butler, Wooten & Peak, James E. Butler, Jr., Joel O. Wooten, Jr., Brandon L. Peak, Rory A. Weeka, amici curiae.

McMillian, Justice.

Rubin Harvey, while driving a dump truck in the course of his employment with Oxford Construction Company, collided with a tractor driven by Johnny Williams, causing severe injuries to Williams. After Oxford conceded liability in the ensuing lawsuit, the jury returned a general verdict for $18 million. The defendants appealed, and the Court of Appeals reversed, holding that, although the defendants did not make a contemporaneous objection, Williams's counsel made an improper and prejudicial statement in closing argument that clearly violated the trial court's order granting the defendants’ motion in limine. See Harvey v. Williams , 354 Ga. App. 766, 770 (1) (a), 841 S.E.2d 386 (2020). We granted Williams's petition for certiorari and posed a single question:

Whether a party must object to argument of counsel that allegedly violates a granted motion in limine in order to preserve the issue for appeal?

For the reasons set forth below, we answer in the affirmative and reverse the judgment of the Court of Appeals.¹

The Court of Appeals summarized the underlying facts as follows:

On April 11, 2013, Williams was driving a tractor for a local pecan farmer when a loaded dump truck driven by Harvey, an employee of Oxford, hit the back of his tractor. Williams was thrown from the tractor and ended up in a ditch on the side of the highway. As a result of the collision, Williams sustained severe injuries, including but not limited to a traumatic brain injury, multiple fractures (including a cracked skull), and the onset of seizures. In addition, while in the hospital for treatment, he developed sepsis. After spending approximately six weeks in the hospital, Williams was transferred to a rehabilitation center for patients with traumatic brain and other injuries where he was evaluated by several specialists and participated in different types of therapy. Williams was discharged to his home after approximately five weeks with the instruction that he would require 24-hour supervision.

At the time of the collision, Williams was 67 years old and was physically active. He enjoyed doing yard work, going to church and singing in the choir, and being around his family and friends. As a result of the traumatic brain injury he sustained in the accident, Williams requires 24-hour care for his day-to-day activities, requires medication to prevent seizures, has dementia, has trouble walking, has trouble emotionally because he gets agitated and confused, and has sexual dysfunction. When he walks, his gait is very slow and unsteady, and he has to wear a gait belt because he is at high risk for falling. At the time of trial, Williams was living at home and receiving care from certified nursing assistants 24 hours a day.

A life care plan was prepared for Williams, and it included two options — the first option was for him to stay in the home environment and the second option was for him to move to a residential memory care unit. Because the home care option was only available so long as a family member lived with Williams in the home, the life care planner added the memory care unit option in the event a family member was unable to live with him for a temporary or extended period of time. An economics expert calculated the present value of the life care plan, assuming that Williams would live 11.57 years, and valued the home care option at $2,146,805 and the memory care unit option at $773,212. The economist also calculated lost earnings and modest fringe benefits to age 72½ in the amount of $85,524. Williams's medical expenses totaled $1,150,054.15. Thus, with the home care option, the total special damages would be $3,382,383.15, and with the memory care unit option, the total would be $2,008,790.15.

During opening [statements], Williams's counsel informed the jury that they would be seeking approximately $3.4 million in special damages and $20 million for pain and suffering. Counsel for Oxford and Harvey informed the jury during opening [statements] that they were admitting that Harvey was negligent and that he had caused the accident, and that the only issue to be resolved was the amount of compensation Williams should receive. Defense counsel suggested that fair and reasonable compensation would be between $4.1 million and $5.1 million, which would include payment of the claimed medical expenses and lost wages and future care in the amount of $1.5 million, representing the approximate average between the cost of in-home care and the cost of the memory care unit, as well as pain and suffering of $1.5 million to $2.5 million. During closing argument, counsel for both parties repeated their suggestions as to the appropriate award for Williams. The jury returned a verdict for $18 million. Following the verdict, the trial court credited Oxford and Harvey with an insurance company payment in the amount of $5,432,103.84 and entered judgment in favor of Williams in the amount of $12,567,896.16. The trial court also awarded prejudgment interest in the amount of $1,865,753.42 because Oxford and Harvey failed to accept Williams's pretrial demand of $6 million, which was made in accordance with OCGA § 51-12-14 (a).

Oxford and Harvey filed a motion for new trial in which they argued, inter alia, that Williams's counsel violated several of the court's motion in limine rulings during closing argument, including the ruling prohibiting arguments offered predominantly to overly inflame the emotions of the jury and the ruling prohibiting a violation of the "golden rule." Oxford and Harvey also argued that Williams was not entitled to prejudgment interest pursuant to OCGA § 51-12-14. Following a hearing, the trial court denied the motion for new trial. In its order, the trial court specifically addressed the potential "golden rule" violation and the prejudgment interest issue but only mentioned in general terms the claimed violation of the ruling prohibiting arguments offered predominantly to overly inflame the emotions of the jury [before holding there was no violation].

Harvey , 354 Ga. App. at 766-68, 841 S.E.2d 386.

In the relevant motion – motion in limine number 33 – the defendants sought to exclude "[s]tatements, contentions, arguments, inferences, or proffer of any evidence to elicit sympathy for the Plaintiff or any individual." The trial court reserved ruling on the motion as to potential testimony or evidence, finding the motion overly broad and too vague, but also stated: "Nevertheless, any statements, arguments, or evidence offered predominantly to overly inflame the emotions of the jury or to [e]licit excessive or undue sympathy, hostility, or prejudice for or against either party is prohibited." In reversing the judgment, the Court of Appeals held that Williams's closing argument, in which counsel compared the life care plan with the nursing home option to a "death warrant," "clearly violated the trial court's ruling precluding argument offered predominantly to overly inflame the emotions of the jury." Harvey , 354 Ga. App. at 769 (1) (a), 841 S.E.2d 386. And, although there was no contemporaneous objection, the Court of Appeals, relying on Central of Ga. R. Co. v. Swindle , 260 Ga. 685, 687, 398 S.E.2d 365 (1990), held that the trial court's ruling on the motion in limine was sufficient to preserve the issue for appeal, and that the error was harmful. See Harvey , 354 Ga. App. at 769-70 (1) (a), 841 S.E.2d 386. We granted certiorari to consider this part of the Court of Appeals's opinion.

1. We begin our analysis by examining the evolution of Georgia's contemporaneous objection rule in the context of a purported violation of a motion in limine during trial. The contemporaneous objection rule, which has been a cornerstone of Georgia trial practice for over 150 years,² generally requires that, "in order to preserve a point of error for the consideration of an appellate court, counsel must take exception to the alleged error at the earliest possible opportunity in the progress of the case by a proper objection made a part of the record." Sharpe v. Ga. Dept. of Transp. , 267 Ga. 267, 267 (1), 476 S.E.2d 722 (1996) (citation and punctuation omitted). This requirement affords the trial court the opportunity to take remedial action if necessary at the time the alleged error is made, thereby reducing the likelihood that a motion for new trial or appeal will result in reversal of the final judgment. See Weldon v. State , 297 Ga. 537, 541, 775 S.E.2d 522 (2015) ("Failure to raise the issue deprives the trial court of the opportunity to take appropriate remedial action and waives appellate review of any alleged impropriety."); Miller v. State , 267 Ga. 92, 92 (2), 475 S.E.2d 610 (1996) (addressing the defendant's failure to object to alleged improper closing argument at the time it occurred in order to afford the trial court the opportunity to take remedial action).

A motion in limine is a pretrial motion that may be used in two ways: (1) to obtain a final ruling on the admissibility of evidence prior to trial or (2) to prevent the mention of certain evidence or an area of inquiry until its admissibility can be determined during the course of trial outside the presence of the jury. See State v. Johnston , 249 Ga. 413, 415 (3), 291 S.E.2d 543 (1982). See also ...