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Petrenko v. Moseri

Court of Appeals of Georgia

July 9, 2015

PETRENKO
v.
MOSERI et al

Negligence. DeKalb State Court. Before Judge Panos.

Smith, Welch, Webb & White, John P. Webb, Grant E. McBride, for appellant.

Waldon, Adelman, Castilla, Hiestand & Prout, Jonathan M. Adelman, Rakhi D. McNeill; Cruser & Mitchell, J. Robb Cruser, Ashley A. Macnamara, for appellees.

DOYLE, Chief Judge. Dillard, J., concurs. Ellington, P. J., concurs in judgment only.

OPINION

Page 273

Doyle, Chief Judge.

Kelly Petrenko appeals the trial court's denial of her motion for new trial. She contends that the trial court erred by (1) allowing the defendant to open and conclude closing arguments after the defendant had introduced evidence; (2) allowing the defendant to withdraw its evidence after it had been admitted; (3) not charging the defendant with evidence that was used in its cross-examination of the plaintiff, but not formally tendered; and (4) readmitting Defendant's Exhibit 1 as Plaintiff's Exhibit 9, over the plaintiff's objection. For reasons that follow, we affirm.

Petrenko sued Stephen Moseri for injuries she sustained in an automobile collision she alleged was caused by Moseri. Moseri's insurer paid Petrenko $30,000. Petrenko also had a $100,000 uninsured motorist policy issued by State Farm Mutual Automobile Insurance Company (" State Farm" ), and State Farm elected to proceed in Moseri's name in this case.

The exhibit initially marked as Defendant's Exhibit 1 was identified during the videotaped deposition testimony of Petrenko's treating physician, which was played for the jury at trial during Petrenko's case-in-chief. Before the deposition was played, the trial court conferred with counsel for both parties about the deposition exhibits. The court stated, " Plaintiff's [Exhibits] 1 and 2 are admitted without objection, and Defendant's [Exhibit] 1 is admitted without objection, correct?" Petrenko's counsel responded, " That is correct," but State Farm's counsel did not respond. After further discussion, the court again stated that the same exhibits were admitted without objection and that the evidence was for the jury's consideration.

During the deposition, State Farm's counsel asked Petrenko's doctor about Defendant's Exhibit 1:

COUNSEL: After you provided opposing counsel with a medical narrative, you received a call from opposing counsel's office on November 1st, 2012, is that right[?]
DOCTOR: I believe so, yes.
[333 Ga.App. 15] COUNSEL: And they basically called to tell you that they had some areas of concern with the narrative you presented, correct?
DOCTOR: I believe, yeah. It's been a long time ago.
COUNSEL: Well, that's what it says in your note, in your ...

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