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Womack v. Johnson

Court of Appeals of Georgia

July 24, 2014

WOMACK et al.
v.
JOHNSON

Opening statement. Polk Superior Court. Before Judge Sutton.

Judgment affirmed.

Sidney P. Wright, for appellants.

David E. Betts , Julie J. Oinonen, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.

OPINION

Ellington, Presiding Judge.

Michael Womack and Geston Womack brought this action in the Superior Court of Polk County against Wendi Spain Johnson, as administratrix of the estate of Jerry Floyd Spain to collect an alleged debt arising from the Womacks' and Spain's joint farming operation. A jury found in favor of Spain's estate, and the Womacks appeal, contending that the trial court erred in denying their motion for a mistrial, which was based on allegedly improper conduct by Johnson's counsel

Page 429

during his opening statement. For the following reasons, we affirm.

During his opening statement, Johnson's counsel showed the jury photographs of Spain and his infant son.[1] Johnson's counsel blocked the photographs from the view of the Womacks' counsel, who could hear the argument being made but could not actually see the photographs as they were being displayed. It is undisputed that these photographs were not listed in the pretrial order and that Johnson [328 Ga.App. 544] had not shown them to either the Womacks or the Court before using them during the opening statement.

On the second day of trial, the Womacks moved for a mistrial. The Womacks argued that the photographs were improper because they were not listed in the pretrial order and because they were inherently prejudicial. The record shows the Womacks argued that the photographs caused the jury to think, " oh, that poor baby, he'll never see his father." The Womacks argued that, after Johnson's counsel displayed the photographs, they were now " fighting a baby" rather than litigating the merits of their claim. Johnson responded that using the photographs and discussing the child during his opening statement was proper because the child is a real party in interest, and a jury is entitled to know who has an interest in the matter before them. The trial court denied the Womacks' motion for a mistrial. The trial court, however, instructed Johnson's counsel not to use the photographs or refer to the child for the remainder of the trial, including during closing arguments.

1. The Womacks contend the trial court abused its discretion in denying their motion for a mistrial. Johnson argues, however, that the Womacks waived any error by failing to make a contemporaneous objection to the use of the photographs of Spain and his child. We agree with Johnson.

Pursuant to OCGA § 9-10-185, a trial court may order a mistrial based on improper and prejudicial statements made in the presence of the jury.[2] An appellate court will not review the discretion of the trial judge in failing to order a mistrial for an alleged improper argument of counsel when no objection was made by opposing counsel. Wright v. Wright, 222 Ga. 777, 781 (4) (152 S.E.2d 363) (1966) (holding it necessary for counsel to object to an improper argument to make the same a basis for review); see Counts v. Moorehead, 232 Ga. 220, 221 (2) (206 S.E.2d 40) (1974) (" [T]he trial court in a civil case may, upon the motion of either party, grant a mistrial for improper remarks of counsel." ). " [I]n 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." (Emphasis [328 Ga.App. 545] supplied.) Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 S.E.2d 722) (1996). Here, the Womacks did not object on the record at the earliest possible moment -- during the opening statement when Johnson's counsel made reference to Spain's child.[3]

When a party fails to assert a contemporaneous objection to allegedly improper remarks of counsel, the party " waive[s] his right to complain about the remarks on appeal." Brooks v. State, 284 Ga.App. 762, 763-764 (644 S.E.2d 891) (2007). Thus, when a party waits until the conclusion of the opposing party's ...


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