Contemporaneous Objections Required to Preserve the Record for Appeal for Arguments Made by Counsel
The Georgia Supreme Court was recently asked to determine “[w]hether a party must object to argument of counsel that allegedly violates a granted motion in limine in order to preserve the issue for appeal[.]” The Georgia Supreme Court determined that an objection must be made contemporaneously to the alleged improper comments.
In Williams v. Harvey, et al. Johnny Williams was driving a tractor which was rear-ended by Rubin Harvey, who was driving a dump truck in the scope and course of his employment with Oxford Construction Company. As a result of the accident, Williams was thrown from the tractor and suffered severe injuries, including traumatic brain injuries. Evidence of two life care plans were entered, in which experts testified under one option, if Williams remained at home, expenses would amount to approximately $2.1 million in care. For the other option, if no one was able to stay with Williams and Williams needed to enter a nursing home, the expenses would total approximately $775,000.
Before trial Harvey and Oxford filed a motion in limine to prevent “[s]tatements, contentions, arguments, inferences, or proffer of any evidence to elicit sympathy for Plaintiff or any individual.” The trial court reserved ruling, but also indicated that “any statements, arguments, or evidence offered predominately to overly inflame the emotions of the jury…is prohibited.”
In closing arguments, counsel for Williams compared the life care plan involving the nursing home to a “death sentence.” Counsel for Harvey and Oxford did not object at the time. The jury returned a verdict of $18 million for Williams. Harvey and Oxford filed a motion for new trial contending Williams’ counsel’s statement violated the motion in limine. The trial court denied the motion and Harvey and Oxford appealed.
The Georgia Court of Appeals reversed the decision of the trial court, finding Harvey and Oxford were not required to contemporaneously object. The Court of Appeals relied upon Central of Ga. R. Co. v. Swindle, 260 Ga. 685 (1990). Williams appealed the reversal to the Georgia Supreme Court. The Georgia Supreme Court focused on the history regarding motions in limine. The Georgia Supreme Court noted that though it had previously ruled that either a denial or grant of a motion in limine was sufficient to preserve the record for ruling on evidence, the Georgia Court of Appeals extended the rulings to encompass arguments made by counsel. The Georgia Supreme Court noted that the Georgia Statute (O.C.G.A. §24-1-103) related to evidence was based upon the Federal Rule (Fed. R. Evid. 103) clarifying that once a trial court has definitively ruled on the record a party need not renew their objection. The Georgia Supreme Court noted that in the Eleventh Circuit, when dealing with arguments made by counsel and not evidence, a party is required to contemporaneously object in order to preserve the record. Therefore, because Harvey and Oxford did not object to counsel’s closing arguments contemporaneously, they waived their argument before the Court of Appeals. The Georgia Supreme Court noted that the purpose of the contemporaneous objection was to permit the trial court to issue a ruling and deal with the alleged issue at the time to prevent the need for a new trial.
Harvey and Oxford further argued that in spite of the adoption of Federal Rule of Evidence 103, pursuant to O.C.G.A. §9-10-185, because the motion in limine had been ruled upon, no contemporaneous objection needed to be made. The Georgia Supreme Court again disagreed. The Georgia Supreme Court noted that under the statute:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds. In its discretion, the court may order a mistrial if the plaintiff’s attorney is the offender.
O.C.G.A. §9-10-185 (emphasis supplied by court). The Georgia Supreme Court declined to extend the meaning of “[o]n objection made” to include a motion in limine.
Harvey and Oxford further argued under Stolte v. Fagan, 291 Ga. 477 (2012) the appellate court could consider whether there was a probability that the improper argument would have changed the result of the trial. The Georgia Supreme Court noted that it had already determined that such review was in appropriate in non-death penalty criminal cases. The Georgia Supreme Court decided to overrule the decision in Stolte noting that it had “extended a principle of review from death penalty cases, which had statutory and constitutional roots, to civil cases, without any analysis or explanation.”
Harvey and Oxford argued that because the prior decisions permitted for an appellate court to review, a review should be permitted in the matter since the decision to overturn was a “substantive change in the law.” The Georgia Supreme Court determined that even if it were to review the statement made by Williams’ counsel in closing arguments, it did not find that the trial court had abused its discretion. The Georgia Supreme Court further indicated that because rulings on motions in limine must be narrowly tailored and the motion in limine submitted by Harvey and Oxford was “so vague and overly broad as to render it virtually meaningless.” Therefore, the Georgia Supreme Court determined that an objection would have to be made contemporaneously so the trial court could decide whether the argument fell under the ruling on the motion in limine.