text:
    A13A0403.
    NIXON et al. v. PIERCE COUNTY SCHOOL DISTRICT.
    (746 SE2d 225)
   Dillard, Judge.

Katina Nixon was injured when her economy-sized sedan was struck from behind by a school bus while she was nine months pregnant. After her baby was determined to have cerebral palsy caused by a perinatal stroke, she brought an action for negligence, on her own behalf and as the “next friend” of her daughter, against the Pierce County School District (hereinafter, “the District”). Following discovery, the District filed a motion for partial summary judgment, alleging that Nixon failed to create a genuine issue of material fact as to the cause of the injuries sustained by her daughter. The trial court granted the motion, and Nixon appeals. For the reasons set forth infra, we reverse.

The facts pertinent to this appeal are essentially undisputed. The record shows that on the afternoon of March 10, 2008, Nixon, then 38- to 39-weeks pregnant, was injured when a District school bus rear-ended her vehicle. During the collision, Nixon was thrust forward, causing bruises across her chest and lap from the seat belt. She also suffered injuries to her shoulders and neck, which she described as unbearably painful. Nixon immediately called 911 and reported being injured, and was subsequently taken from the accident to the hospital by an ambulance. At the hospital, the attending physician decided to induce labor the following morning. On March 11, Nixon gave birth to her daughter, Kylee.

Up to the point of the accident, Nixon had experienced a normal and healthy pregnancy with no complications whatsoever. Likewise, at no time were there any signs of complications with her baby. At birth, Kylee appeared healthy and gave no outward indications that she might suffer from any neurological-development issues.

When Kylee was approximately six months old, however, her mother noticed that she favored her left hand and generally did not use her right hand to hold or grab objects. When Kylee was a year old and it became more apparent that she struggled to crawl due to limited usage of her right side, Nixon discussed her observations with Kylee’s pediatrician. At that time, the pediatrician referred them to a pediatric neurologist, who later determined that Kylee was suffering from cerebral palsy as a result of a perinatal stroke.

In March 2010, Nixon filed a negligence action against the District on her own behalf and as “next friend” of Kylee, alleging, inter alia, that Kylee’s stroke and resulting cerebral palsy were caused by the traumatic impact of the bus accident. The neurologist was thereafter deposed and, during the course of that deposition, she testified definitively that Kylee suffered cerebral palsy as a result of a perinatal stroke. She also testified that perinatal strokes are commonly caused by trauma suffered in útero, and opined that Kylee’s stroke occurred between 30 weeks gestation and one month of age. And the neurologist further deposed that it was entirely possible that the trauma inflicted upon Nixon and Kylee during the bus accident proximately caused Kylee’s stroke and the resulting cerebral palsy. But the neurologist could not testify to a causal connection between the perinatal stroke and bus accident beyond a 50-percent possibility because perinatal strokes, such as Kylee’s, are often “silent” in that they occur without clinical signs, rendering it impossible to pinpoint exactly when they happen. As such, the neurologist concluded that Kylee’s stroke could have been caused by the bus accident or, alternatively, could have been caused by a heart defect or simply could have been a spontaneous event.

The District filed a motion for partial summary judgment, contending that Nixon failed to create a genuine issue of material fact on the causal connection between Kylee’s injuries and the bus accident. In its motion, the District asserted that whether the accident caused Kylee to suffer a perinatal stroke was a specialized medical question that required expert testimony within a reasonable degree of certainty in order to reach a jury, and that the neurologist’s 50-percent possibility testimony fell below that standard.

The trial court agreed that Nixon failed to create a jury question as to whether Kylee sustained an injury as a result of the bus accident and granted the District’s motion. Nixon appeals, arguing both that the question as to whether the bus accident caused Kylee’s stroke is not a specialized medical question and, further, that the record evidence presents a jury question as to causation. We agree with the District that the causal connection between the stroke and bus accident presents a specialized medical question that requires expert testimony but, for the reasons set forth infra, we hold that the record evidence is sufficient to create a jury question on that issue.

At the outset, we note that our review of the trial court’s grant of summary judgment is de novo, and that summary adjudication is appropriate only if the moving party “demonstrate [s] that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” The defendant may do this by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Significantly, however, when ruling on a motion for summary judgment, “the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.” Moreover, issues of negligence, including causation, are generally for the jury, “and may be resolved on summary judgment only [when] the evidence is plain, palpable and undisputable.” With these guiding principles in mind, we turn now to Nixon’s enumerations of error.

1. Nixon first alleges that the trial court erred by implicitly requiring expert testimony to show a causal connection between the bus accident at issue and Kylee’s stroke, arguing that because this action is one for simple negligence, expert testimony on causation is not required. We disagree.

The general rule is that there is “no requirement that expert testimony must be produced by a plaintiff to a negligence action in order to prevail at trial.” But even in simple negligence cases, plaintiffs must come forward with expert evidence in order to survive a defense motion for summary judgment when “medical questions relating to causation are involved.” Medical questions are presented when “the existence of a causal link between the defendant’s conduct and the plaintiff’s injury cannot be determined from common knowledge and experience.”

And here, we have little trouble concluding that the case sub judice presents a medical question that requires expert testimony. The causal link between a motor-vehicle accident causing injuries to a pregnant mother and a later-discovered perinatal stroke suffered by her baby cannot be “determined from common knowledge and experience.” Consequently, expert testimony is indeed required to establish causation.

2. Nixon further argues that, regardless of whether the issue of causation presents a medical question, she has presented a sufficient combination of expert and nonexpert evidence to create a genuine issue of material fact and, therefore, summary judgment was inappropriate. Giving, as we must, Nixon the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom in her favor, we agree.

When expert testimony on causation is required, the testimony generally “must show as an evidentiary threshold that the expert’s opinion regarding causation is based ... on the determination that there was a reasonable probability that the negligence caused the injury.” The natural consequence of requiring an expert to testify to probability in matters of causation is that “testimony as to the possibility of a causal relation between a given accident or injury and the subsequent . . . impaired physical or mental condition of the person injured is not sufficient, standing alone.” It is also well established, however, that expert testimony regarding the possibility of a causal link between negligence and injury, when combined with other nonexpert evidence indicating that a relationship exists, “is sufficient to establish the causal relation” so as to create a jury question. Thus, medical expert testimony as to causation that shows only a reasonable possibility as opposed to a probability “may be aided by other medical or non-medical evidence that, in totality, shows causation, even though the medical opinion is weak . . . .”

Given the foregoing, we conclude that summary judgment in this case was inappropriate. As set forth supra, Nixon’s expert testified that Kylee’s cerebral palsy resulted from a stroke; the stroke was perinatal, most likely occurring between 30 weeks gestation and one month post-delivery; perinatal strokes commonly result from trauma suffered in útero; and the accident in question was sufficiently traumatic to cause the stroke. The expert concluded that it was entirely possible that the trauma inflicted on Nixon and the baby during the bus accident proximately caused Kylee’s stroke. Though this testimony, standing alone, is not sufficient to overcome summary judgment, it creates a jury issue when considered in conjunction with evidence that (1) Nixon experienced a normal and healthy pregnancy with no complications prior to being involved in a serious accident (i.e., one in which her economy-sized sedan was struck from behind with considerable force by a school bus); and (2) the accident fell squarely within the time frame that the expert opined the stroke was suffered and Nixon had not been involved in any other accidents during her pregnancy. And because this is not a case in which the evidence is “plain, palpable and undisputable,” summary judgment was improper. Accordingly, we reverse the trial court’s order granting summary judgment in favor of the District.

Decided July 9, 2013

Dodd & Burnham, Roger J. Dodd, for appellants.

Young, Thagard, Hoffman, Smith & Lawrence, John H. Smith, Jr., for appellee.

Judgment reversed.

McMillian, J., concurs. Andrews, P. J., concurs in judgment only.

       The neurologist defined “perinatal” as sometime before birth and up to one month after delivery.

       The neurologist testified that due to the nature of the neurological disorder, it is common and expected that the symptoms of cerebral palsy are not recognized in a child until that child begins attempting movements, such as crawling or walking, and observations are made that the child is delayed in reaching certain developmental milestones.

       Kylee was born with a small hole between the chambers of her heart and was diagnosed with either a ventricular septal defect or a patent foramen ovale; this condition, however, was deemed “insignificant” and seemingly closed without any medical intervention.

        Knight v. Roberts, 316 Ga. App. 599, 600 (730 SE2d 78) (2012); see OCGA § 9-11-56 (c).

        Knight, 316 Ga. App. at 600 (punctuation omitted); see OCGA § 9-11-56 (c).

        Knight, 316 Ga. App. at 600-01 (punctuation omitted; emphasis supplied); see OCGA § 9-11-56 (c) (“[N]othing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to he determined.”).

        Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 158 (3) (658 SE2d 909) (2008) (punctuation omitted).

        Self v. Exec. Comm. of the Ga. Baptist Convention, Inc., 245 Ga. 548, 549 (266 SE2d 168) (1980).

        Cowart v. Widener, 287 Ga. 622, 627 (2) (a) (697 SE2d 779) (2010) (punctuation omitted).

        Cowart, 287 Ga. at 627 (2) (b). Compare Seymour Elec. & Air Conditioning Serv., Inc. v. Statom, 309 Ga. App. 677, 680 (710 SE2d 874) (2011) (causal connection between inhalation of carhon monoxide and memory loss presents medical'question because “we have required expert medical testimony... to establish a causal link between exposure to a substance and a medical condition”); Allstate, 290 Ga. App. at 159-60 (3) (b) (expert testimony needed to establish the link between ongoing respiratory conditions and mold because “[t]he diagnosis and potential continuance of a disease or other medical condition are medical questions to be established by physicians as expert witnesses and not by lay persons” (punctuation omitted)); Lancaster v. USAA Cas. Ins. Co., 232 Ga. App. 805, 808 (3) (a) (502 SE2d 752) (1998) (physical precedent only) (“[T]he connection between flaring fibromyalgia and [a motor-vehicle] accident is not the type of common sense deduction that lay factfinders have been found competent to make.”) with Self, 245 Ga. at 549 (jury permitted to consider whether a blow to the head contributed to decedent’s death without the need for expert testimony); Jester v. State, 250 Ga. 119, 119-20 (1) (296 SE2d 555) (1982) (“[T]hat a stab wound penetrating entirely through the heart causes death, is not a matter in the common experience of the human race which should even require expert testimony.”); Jordan v. Smoot, 191 Ga. App. 74, 75 (1) (380 SE2d 714) (1989) (causal link between car accident and back pain does not require expert testimony because “the injury sustained is a matter which jurors must be credited with knowing by reason of common knowledge”).

        Cowart, 287 Ga. at 627 (2) (b). See generally Statom, 309 Ga. App. at 680; Allstate, 290 Ga. App. at 159-60 (3) (b); Lancaster, 232 Ga. App. at 808 (3) (a) (physical precedent only).

        See Knight, 316 Ga. App. at 600-01.

        Zwiren v. Thompson, 276 Ga. 498, 501 (578 SE2d 862) (2003).

        Natl Dairy Prods. Corp. v. Durham, 115 Ga. App. 420, 423 (154 SE2d 752) (1967) (emphasis supplied).

        Id.; see Hodson v. Mawson, 227 Ga. App. 490, 492 (4) (489 SE2d 855) (1997) (“While medical testimony as to the mere possibility of a causal relation between a given event and the subsequent physical or mental condition of an injured person will not establish the causal relationship, medical evidence which shows the possibility of a causal relationship in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, is sufficient to establish the causal relation.” (punctuation omitted)); Ga. Cas. & Surety Co. v. Jernigan, 166 Ga. App. 872, 877 (5) (305 SE2d 611) (1983) (“There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of a causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold the view that such evidence, in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation.” (punctuation omitted)); accord Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 708 (2) (505 SE2d 232) (1998). Cf. Eberhart v. Morris Brown College, 181 Ga. App. 516, 519 (1) (352 SE2d 832) (1987) (“Had appellant adduced... medical testimony that his subsequent physical condition was the possible result of his prior football injury [in addition to his medical bills], the jury would perhaps have been authorized to award appellant those medical expenses.” (citation omitted)).

        Rodrigues v. Ga. Pacific Corp., 290 Ga. App. 442, 445 (661 SE2d 141) (2008) (punctuation omitted).

       Photographs taken shortly after the accident show substantial damage to the rear of Nixon’s vehicle, and the collision was serious enough to cause Nixon pain and significant bruising across her abdomen and midsection.

        See Rodrigues, 290 Ga. App. at 445-46 (reversing summary judgment because even assuming expert testified only that chlorine exposure was a possible cause of plaintiff’s pneumonia, evidence was supplemented by testimony as to plaintiff’s apparent good health prior to exposure and rapid onset of symptoms following exposure); Durham, 115 Ga. App. at 423-24 (jury’s finding of causation authorized by expert’s opinion that collision may have placed pressure on decedent’s pelvic organs and caused dormant cancerous tumors to activate and spread when considered in connection with decedent’s prior good health and subsequent decline in health); see also Hodson, 227 Ga. App. at 492 (4) (expert testimony opining a possible connection between accident and injury suffered to plaintiff’s hip area “was properly admitted along with other non-expert testimony which authorized the jury to find a causal connection between the injury and the accident”); Hert v. Gibbs, 191 Ga. App. 471, 472 (1) (382 SE2d 191) (1989) (trial court did not err in denying appellant’s motions for directed verdict or j.n.o.v. because weak expert testimony as to a causal connection between accident and plaintiff’s grand mal seizure six weeks later was supplemented by nonexpert evidence that authorized jury’s finding).

        Allstate, 290 Ga. App. at 158 (3).


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A0409.
    FLETCHER v. C. W. MATTHEWS CONTRACTING COMPANY, INC.
    (746 SE2d 230)
   ANDREWS, Presiding Judge.

This appeal arises from an action by materials supplier C. W. Matthews Contracting Company, Inc., to recover on a guaranty made by Larry Fletcher. Following a jury verdict and the entry of judgment for C. W. Matthews, Fletcher moved for a judgment notwithstanding the verdict (j.n.o.v.) or, in the alternative, a new trial. Fletcher claims that the trial court erred in denying his motion because the evidence demanded a verdict contrary to that returned by the jury, and, if not, the trial court’s errors in charging the jury, among other things, required a new trial. We agree with Fletcher that there was no evidence of his bad faith which could support the jury’s award of attorney fees under OCGA § 13-6-11, and that the trial court erred in failing to grant his motion for j.n.o.v. as to that claim. But for the reasons set forth below, we conclude that Fletcher’s other claims of error are without merit. Accordingly, we affirm in part and reverse in part.

“There is a presumption in favor of the validity of verdicts. And after rendition of a verdict, all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict.” (Citation and punctuation omitted.) Williamson v. Strickland & Smith, Inc., 263 Ga. App. 431 (587 SE2d 876) (2003). So viewed, the evidence shows that Fletcher, Glenn Neely, and others formed N & N Partners, LLC, in or about 2007. C. W. Matthews sued N & N on an open account for failure to pay for materials C. W. Matthews sold to N & N. Fletcher was named as a co-defendant based on his personal guaranty of N & N’s obligations. The trial court awarded summary judgment to C. W. Matthews on its claims against N & N, and the case against Fletcher proceeded to a jury trial.

The testimony at trial largely concerned Fletcher’s guaranty. C. W. Matthews required, according to its manager, that N & N provide a completed credit application and an individual guaranty as part of becoming a customer to buy hot mix asphalt. A form guaranty was submitted by C. W. Matthews to N & N. Fletcher signed the guaranty, and it was returned to C. W. Matthews along with the credit application. C. W. Matthews then opened an account for N & N to draw asphalt.

The form guaranty was styled “Individual Gaurantee [sic].” It included several blank lines. Three of these lines had “Company Name” printed thereunder, and these lines were filled in by hand as “N & N Partners, LLC Dba N & N Asphalt.” One line in the body of the guaranty had “Individual” printed under it and was filled in by hand as “Glenn Neely/Larry Fletcher.” The signature line was in blank with “Individual” printed under it, and that is where Fletcher placed his signature.

As completed, the guaranty, dated June 12, 2007, provided in pertinent part that in consideration of credit “heretofore or hereafter executed to” N & N by C. W. Matthews, “I Glenn Neely/Larry Fletcher, hereby unconditionally bind myself as Guarantor for the full and prompt payment when due of any and all amounts for which [N & N] may become indebted to C. W. Matthews..., or their assign.” Further, the guaranty provided that “I make myself primarily liable for such indebtedness,” without the need for C. W. Matthews first having to proceed against N & N, and that “I may be sued ‘severely [sic] from’ as well as ‘jointly and severally with’ ” N & N. At the bottom of the guaranty it is stated, in bold print: “If Application is not completed in its entirety it can not be processed.” There is no “merger clause” providing that the guaranty contained the entirety of the parties’ agreement. According to Fletcher, Neely’s wife filled in the blanks on the guaranty. Neely never signed the guaranty, but, according to Fletcher, “I thought he was going to.”

After C. W. Matthews received the credit application and the signed guaranty, its credit manager sent N & N a letter that stated, among other things, “[y]our account has been approved with a $40,000 limit.” Following submission of the credit application, a handwritten note stating “Credit Limit $40,000” was also placed thereon by a C. W. Matthews representative. There was, however, no specific credit limit specified in the credit application as submitted to C. W. Matthews. Fletcher testified that his understanding was that his limit of liability would be $40,000 and that he would not have signed the guaranty if he had thought it was unlimited.

Notwithstanding the credit limit, N & N ordered more than $40,000 worth of material from C. W. Matthews. According to the testimony of C. W. Matthews’s representative, as of the day of trial N & N owed $126,428.28 on the account guaranteed by Fletcher. After C. W. Matthews rested its case, Fletcher moved for a directed verdict on the issues of its liability for damages and for attorney fees, which the trial court denied. The jury found in favor of C. W. Matthews and awarded $135,982.63 in compensatory damages, interest in the amount of $24,698.33, and attorney fees in the amount of $3,614.52. Fletcher moved for j.n.o.v. or, in the alternative, for a new trial. The trial court denied Fletcher’s motion, but, with consent of C. W. Matthews, reduced the principal amountofthejudgmentto $126,428.28. Fletcher appeals.

1. Fletcher contends that the trial court erred in denying his motion for j.n.o.v. because the evidence demanded a verdict contrary to that returned by the jury. A motion for directed verdict or j .n.o.v. is properly granted where “there is no conflict in the evidence as to any material issues and the evidence (construed in favor of the nonmovant) demands a particular verdict.” (Citation and punctuation omitted.) Hart v. Shergold, 295 Ga. App. 94, 96 (1) (670 SE2d 895) (2008). Accordingly, the appellate standard of review of the denial of a motion for directed verdict or for j.n.o.v. is the any evidence test. Id.

(a) Fletcher contends that the trial court erred in denying his motion for j.n.o.v. because C. W. Matthews failed to meet its burden of proving an enforceable contract. He argues that C. W. Matthews failed to refute Fletcher’s testimony that it was an essential term of the agreement that Neely sign the guaranty as a co-surety. It follows, Fletcher asserts, that there was no meeting of the minds and no contract to enforce.

In order to make a binding contract, “[b]oth parties must assent to the same thing.” (Citation and punctuation omitted.) Harry Norman & Assoc. v. Bryan, 158 Ga. App. 751, 753 (1) (282 SE2d 208) (1981). See Guggenheimer & Co. v. Gilmore, 29 Ga. App. 540, 541 (116 SE 67) (1923) (finding that “[i]n contracts of guaranty, as in all other contracts, in order for the terms of the agreement to be effective, there must be an actual meeting of the minds of the parties upon the same thing and in the same sense”). Sometimes “the only conduct of the parties manifesting intent is the express language of the agreement,” but “[i]n other instances, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement.” Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982) (finding that “[t]he parties agreed to the language of the contract... [but] it is clear that when the contract was executed the parties did not agree as to what they intended by this language”). And “[w]here such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.” (Citation and punctuation omitted.) Terry Hunt Constr. v. AON Risk Svcs., 272 Ga. App. 547, 552 (3) (613 SE2d 165) (2005).

Looking first to the express language of the guaranty, the document is replete with express promises of the signatory, “I,” and Fletcher knew, as he testified, that he was signing a document providing, among other consistent undertakings, that “I make myself primarily liable for such indebtedness.” Further, there is nothing in the guaranty expressly providing that any promise of a signatory is contingent upon there being two guarantors. Nevertheless, according to Fletcher, his understanding was that the guaranty was not complete until signed by Neely, and that he would not have signed as sole guarantor. In that respect, the guaranty does identify the guarantor as “Glenn Neely/Larry Fletcher.” But the circumstances surrounding the guaranty’s making also show that the guaranty form Fletcher signed was on its face designed to be executed by one guarantor. Neither C. W. Matthews nor Fletcher, but a third party, wrote in “Glenn Neely/Larry Fletcher” over the line “individual.” And Fletcher acknowledged that his association with N & N began in 2007 when “Neely had fallen on some pretty hard financial times,” and Fletcher and others had “paid off [Neely’s] loans,” matters which the jury might find inconsistent with Fletcher’s claim that he thought Neely’s participation as co-surety was essential. There is at least some evidence from which a jury could conclude that Fletcher never intended that his obligations were contingent upon Neely signing the guaranty as co-surety and that there was, rather, a meeting of the minds when upon receipt of the guaranty signed by Fletcher, C. W. Matthews extended credit to N & N.

(b) Fletcher also claims that the trial court erred in denying his motion for j.n.o.v. because C. W. Matthews’s failure to procure Neely as a co-surety was either a change in the contract terms without Fletcher’s consent or a release of a co-surety, thereby discharging Fletcher from liability. See OCGA §§ 10-7-20; 10-7-21. But this argument assumes that there was an agreement that Neely act as co-surety, or that Neely was a co-surety. For the reasons discussed in Division 1 (a), supra, the evidence did not require such a conclusion.

(c) Fletcher argues that the trial court erred in denying his motion for j.n.o.v because C. W. Matthews failed to prove the correct amount due and should not have been awarded damages. We disagree. C. W. Matthews’s manager testified that the principal balance on N & N’s account as of the date of trial was $126,428.28. C. W. Matthews also introduced into evidence the invoices it had generated and submitted to N & N in connection with N & N’s asphalt purchases. On cross-examination, the manager explained that the original complaint alleged a greater amount due because C. W. Matthews thereafter “received some additional small amount of payments . . . close to $10,000,” by reasons of a materialman’s lien, and that “we gave full credit for any payment we received on the account.” Although Fletcher maintains that C. W. Matthews did not properly credit N & N’s account for monies it received from property owners, there was at least some evidence as to the correct amount of the indebtedness guaranteed by Fletcher, and the trial court did not err in failing to grant Fletcher’s motion for j.n.o.v. See, e.g., Multimedia Technologies v. Wilding, 262 Ga. App. 576, 579 (2) (b) (586 SE2d 74) (2003) (finding that, as there was some evidence of damages for breach of contract, trial court properly denied appellant’s motion for j.n.o.v.).

(d) Fletcher further claims that the trial court erred in failing to grant his motion for j.n.o.v. on C. W. Matthews’s claim for bad faith attorney fees under OCGA § 13-6-11. We agree.

C. W. Matthews asserted a claim for attorney fees pursuant to OCGA § 13-6-11. This provision states, in relevant part, that while litigation expenses are generally not part of damages, “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” Id. After C. W. Matthews had presented its case, Fletcher moved for directed verdict on the attorney fees claim on the ground that there was no evidence of his bad faith.

Conduct authorizing a fee award under OCGA § 13-6-11 must arise “from the transaction underlying the cause of action being litigated, not conduct during the course of the litigation itself.” David G. Brown, P.E. v. Kent, 274 Ga. 849, 850 (561 SE2d 89) (2002). And “[b]ad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive.” (Citation and punctuation omitted; emphasis supplied.) Young v. A.L. Anthony Grading Co., 225 Ga. App. 592, 593 (484 SE2d 318) (1997). Thus, bad faith “may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff.” (Citation and punctuation omitted.) Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (c) (501 SE2d 30) (1998).

We fail to identify any evidence that Fletcher breached the guaranty in bad faith or otherwise acted in bad faith in the contractual relations underlying the cause of action. C. W. Matthews points out that Fletcher’s company, Southern Crescent Site Development, performed work on the Coweta County airport project. Southern Crescent then hired N & N to work on the same project. Southern Crescent was paid for its work and in turn paid N & N, but N & N never paid C. W. Matthews for the materials it ordered and used on the project. C. W. Matthews argues that this “inexplicable chain of events” shows Fletcher’s bad faith. But as noted above, bad faith must constitute more than refusal to pay a just debt. See Young, 225 Ga. App. at 593. Even if we assume that N & N’s failure to pay C. W. Matthews for reasons unknown could be evidence of bad faith on N & N’s part, Fletcher was a guarantor whose company fulfilled its obligations to N & N'and who was not shown to have contributed to N & N’s failure to pay. Further, the evidence showed that it was Neely who ordered the materials on N & N’s behalf, and there is a lack of evidence that Fletcher controlled N & N’s work. Compare, e.g., Wheat Enterprises, 231 Ga. App. at 857 (1) (c) (creditor discussed additional work with debtor); Young, 225 Ga. App. at 593 (defendant controlled the manner and method of the work performed).

C. W. Matthews also points out that Fletcher took the position at trial that his guaranty was limited to $40,000, a position which C. W. Matthews characterizes as “not tenable” and shows Fletcher’s bad faith. But C. W. Matthews cannot rely on Fletcher’s conduct in the litigation to show bad faith for purposes of OCGA § 13-6-11. See David G. Brown, P.E., 274 Ga. at 850. As “there was no evidence from which a jury could find that the [guaranty] was made in bad faith or that [Fletcher] breached it as a result of some sinister motive,” there was no evidence from which a jury could award attorney fees on account of Fletcher’s bad faith. Glen Restaurant v. West, 173 Ga. App. 204, 205 (325 SE2d 781) (1984). It follows that the trial court erred by failing to grant Fletcher’s motion for j.n.o.v. on C. W. Matthews’s claim for attorney fees. See id.

2. Fletcher claims that the trial court erred in denying its motion for a new trial. Generally, “[a]s long as there is some evidence to support the verdict, the denial of defendant’s motion for new trial will not be disturbed.” (Citation omitted.) Habel v. Tavormina, 266 Ga. App. 613, 618 (3) (597 SE2d 645) (2004).

(a) Fletcher maintains that he was entitled to a new trial because the principal amount of damages awarded did not conform to the evidence, the trial court improperly charged the jury as to the amount of damages sought, and the interest awarded was arbitrary and not based on the evidence. We disagree.

(i) The jury returned a verdict which included an award of compensatory damages in the amount of $135,982.63, and the trial court initially entered judgment against Fletcher consistent therewith. The trial court, however, had inadvertently instructed the jury as to the amounts C. W. Matthews claimed it was owed at the time it filed the action, which included unpaid principal of $135,982.63. C. W. Matthews had contended at trial that the unpaid principal was only $126,428.28, and it had presented evidence to support that lesser claim. Accordingly, with C. W. Matthews’s consent, the trial court reduced the principal amount of the judgment to $126,428.28.

Fletcher contends that inasmuch as the jury’s verdict may not be substantively amended after the jury has disbursed, the trial court was required to order a new trial. See OCGA § 9-12-7; Force v. McGeachy, 186 Ga. App. 781, 784 (1) (368 SE2d 777) (1988). But the prohibition against the amendment of verdicts does not preclude a trial court from writing off the illegal portion of the verdict. See OCGA § 9-12-8; Kimble v. Kimble, 240 Ga. 100, 102 (2) (239 SE2d 676) (1977). In that respect, “[a] verdict which is erroneous may be corrected by the writing off of the illegal part if the illegal part can be determined and is separable from the rest.” Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3 (102 SE2d 492) (1958). See Dearing & Dearing Enterprises v. A. R. III, Inc., 205 Ga. App. 386 (422 SE2d 284) (1992) (finding that “[a] trial court is authorized to order a write-off as to that portion of a verdict which it finds to be illegal”). Here, the illegal portion of the jury’s verdict can be determined and is separable from the rest because it included a specific award corresponding to the unpaid principal. The only reasonable inference is that the jury was seeking to return a verdict for the total unpaid principal, but its award was greater than what C. W. Matthews had actually requested. See, e.g., Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 316-317 (9) (116 SE2d 326) (1960) (where a portion of the verdict was unrecoverable, but the excess determinable, judgment overruling new trial would be affirmed if plaintiff agreed to write off the excess). The trial court properly wrote off the illegal portion of the verdict and reduced the principal amount of the judgment to $ 126,428.28, thereby reflecting the principal amount claimed and substantiated by C. W. Matthews at trial. We find no error.

(ii) As noted above, the trial court inadvertently instructed the jury as to C. W. Matthews’s pre-trial claims. The trial court was nevertheless able to correct the instruction’s likely effect on the outcome of the proceedings when it eliminated the illegal portion of the jury’s verdict. Fletcher never objected to the charge. Under the circumstances, the charge “was not so harmful as to be reversible in the absence of an objection.” Kitchin v. Reidelberger, 311 Ga. App. 135, 136 (2) (714 SE2d 361) (2011). See OCGA § 5-5-24 (a) (unless otherwise provided, “in all. civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict”); OCGA § 5-5-24 ^.(providing for review of “substantial error in the charge which was harmful as a matter of law,” regardless of objection).

(iii) Fletcher further asserts that he is entitled to a new trial because the jury’s interest award was arbitrary and not based on the evidence. C. W. Matthews sought collection of commercial interest which had accrued on N & N’s unpaid invoices. See OCGA § 7-4-16 (providing, in part, that “owner of a commercial account may charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of IV2 percent per month calculated on the amount owed from the date upon which it became due and payable until paid”). The jury awarded interest in the amount of $24,698.33, although C. W. Matthews had asked for $59,168.43. Although it is not readily apparent how the jury arrived at its figure, it was within the range of the evidence. And “a defendant cannot complain that the plaintiff was entitled to more or nothing at all.” CRS Sirrine v. Dravo Corp., 219 Ga. App. 301, 304 (1) (464 SE2d 897) (1995). We find no error in the denial of a new trial.

(b) Fletcher argues that the trial court’s jury charge on waiver was improper and requires a new trial. Again, we disagree.

Fletcher objected to the trial court’s charge to the jury that, “[ajlthough a guarantor may be discharged by an increase of risk or a novation, a party may waive his right to be discharged by an increase of risk or a novation if that party, through his conduct, assents to the increased risk or novation.” Fletcher suggests that the protections granted by OCGA § 10-7-21 (“[a]ny change in the nature or terms of a contract is called a ‘novation’; such novation, without the consent of the surety, discharges him”) and OCGA § 10-7-22 (“[a]ny act of the creditor... which injures the surety or increases his risk or exposes him to greater liability shall discharge him”) cannot be waived by conduct. However, “the protection of [these] Code sections can be waived by the guarantor’s consent to a novation or additional risk.” Underwood v. Nationsbanc Real Estate Svc., 221 Ga. App. 351, 353 (471 SE2d 291) (1996). Such consent can be given in advance within the guaranty. Id. And consent can also be shown by a guarantor’s other conduct. See Builders Dev. Corp. v. Hughes Supply, 242 Ga. App. 244, 245 (529 SE2d 388) (2000) (in considering if the builder’s guarantor consented to the increased risk when the supplier extended additional credit to the builder, it was relevant that the guarantor “continued to accept credit extended to the [builder] on the strength of his guaranty,” rather than exercising his right to terminate advances); South Atlanta Assoc. v. Strelzik, 192 Ga. App. 574, 576 (2) (385 SE2d 439) (1989) (where evidence showed that a guarantor returned a guaranty to the beneficiary with two guarantor signatures, not the three guarantors previously contemplated, it was for the trier of fact to determine if guarantor had thereby consented to an alteration of the guaranty). Thus, the charge was not an improper statement of the law, as Fletcher asserts. And “a charge may be given when there is slight evidence to sustain it.” AT Systems Southeast v. Carnes, 272 Ga. App. 671, 674 (3) (b) (613 SE2d 150) (2005). Evidence pertinent to whether Fletcher consented to guarantee more than the $40,000 in credit initially extended by C. W. Matthews to N & N includes, for instance, evidence of Fletcher’s conduct in signing a guaranty contemplating that for “credit heretofore or hereafter executed,” he would be unconditionally bound to pay “any and all amounts” for which N & N “may become indebted” to C. W. Matthews. We find no error.

(c) Fletcher also objected to the trial court’s failure to charge the jury, as he requested, that Georgia adheres to the principle that a contract is construed against the drafter. “In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citation and punctuation omitted.) Brown v. Mann, 237 Ga. App. 247, 250 (2) (b) (514 SE2d 922) (1999). While C. W. Matthews provided the form guaranty, it was not the author of the disputed provision identifying the guarantor as “Glenn Neely/Larry Fletcher.” See generally J & E Builders v. R C Dev., 285 Ga. App. 457, 458 (1) (646 SE2d 299) (2007) (ambiguity should be resolved most strongly against the drafter of the contract). Given the evidence presented, Fletcher’s request to charge was misleading, and the trial court did not err in refusing to give it. See, e.g., Brown v. State, 232 Ga. App. 787, 790 (1) (d) (504 SE2d 452) (1998) (trial court may refuse to give confusing or misleading request to charge).

(d) Fletcher further contends that he was entitled to a new trial because the jury’s verdict as to the amount of attorney fees was arbitrary and not based on the evidence. In view of our findings in Division 1 (d), supra, this issue is moot.

Decided July 9, 2013

Hawkins, Parnell, Thackston & Young, Carl H. Anderson, Jr., for appellant.

Moore, Ingram, Johnson & Steele, Christopher C. Mingledorff, for appellee.

Judgment affirmed in part and reversed in part.

Dillard and McMillian, JJ., concur.

       In addition to bad faith, “statutory recovery for stubborn litigiousness or causing unnecessary trouble and expense is authorized if there exists no bona fide controversy or dispute regarding liability for the underlying cause of action.” David G. Brown, P.E. v. Kent, 274 Ga. 849, 850 (561 SE2d 89) (2002). C. W. Matthews does not contend that there was no bona fide dispute regarding liability such that the jury’s attorney fee award was authorized for other than bad faith.


text:
    A13A0683.
    JANNUZZO v. THE STATE.
    (746 SE2d 238)
   ANDREWS, Presiding Judge.

Paul Jannuzzo was found guilty by a jury of one count of theft by conversion in violation of OCGA § 16-8-4, and one count of violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act in violation of OCGA § 16-14-1 et seq. Among other claims, Jannuzzo asserts that the State failed to carry its burden to prove that the charges were brought within the applicable statutes of limitation. Because we find that the State failed to carry this burden on either count of the indictment, we reverse both convictions.

The indictment was filed on June 12, 2009, and alleged in the RICO count that, while Jannuzzo was general counsel for Glock, Inc., he acted in violation of OCGA § 16-14-4 (a) and (c) by unlawfully conspiring with another Glock employee, Peter Manown, to engage in a pattern of racketeering activity by which they unlawfully acquired and maintained, directly and indirectly, interest in and control of personal property, including money, belonging to Glock, Inc., its founder, Gaston Glock, and companies associated with Glock, Inc. The indictment alleged that there was a pattern of racketeering activity by theft and conversion of property, including money, by use of clone bank accounts and forged documents; that this activity occurred between August 28, 1991 and August 26, 2007; and that it consisted of various predicate offenses under OCGA § 16-14-3 (9) (A) as follows: (1) that between February 12,1999, and August 26, 2007, Jannuzzo committed theft by conversion of a LaFrance Specialties pistol owned by Glock, Inc. valued in excess of $500; (2) that while employed by Glock, Jannuzzo (in concert with Manown) unlawfully obtained $177,000, belonging to Glock, Inc., by fraudulent insurance billings; (3) that in or about April 1997, Jannuzzo (in concert with Manown) unlawfully obtained $98,633.80, belonging to Glock, Inc., Gaston Glock or associated companies, by use of a cloned account; (4) that on or about January 11, 2002, Jannuzzo (in concert with Manown) fraudulently created a fictitious document to facilitate an unapproved loan guarantee by a Glock associated company of a $3,400,000 loan; (5) that on or about June 4, 1998, Jannuzzo (in concert with Manown) by use of forged documents unlawfully obtained an unapproved loan of $1,000,000 by Glock, Inc. or associated companies; (6) that on or about August 31, 2000, Jannuzzo unlawfully transferred $60,000, belonging to Glock, Inc. or associated companies, to his individual account in the Cayman Islands, and unlawfully kept $10,000 of these funds; (7) that in or about September 2001, Jannuzzo illegally converted $18,570.25, belonging to Glock, Inc. or associated companies, by transferring the funds to his Cayman Island account; (8) that in or about September 2001, Jannuzzo converted $16,000 belonging to Glock, Inc. or associated companies, by directing that those funds be used to pay his personal debt.

The theft by conversion count sets forth the same offense alleged in the RICO count as a predicate offense — that between February 12, 1999, and August 26, 2007, Jannuzzo committed theft by conversion of a LaFrance Specialties pistol owned by Glock, Inc. valued in excess of $500.

The trial court denied Jannuzzo’s pre-trial plea in bar asserting that the applicable statutes of limitation barred prosecution on the theft by conversion and RICO counts. Nevertheless, at trial the burden remained on the State to prove that the charged offenses occurred within the applicable statutes of limitation, or, if an exception was alleged that would toll the running of the statute, to prove that the exception tolled the statute. Jenkins v. State, 278 Ga. 598, 604, n. 31 (604 SE2d 789) (2004); Merritt v. State, 254 Ga. App. 788, 789 (564 SE2d 3) (2002). “[C]riminal limitations statutes are to be liberally interpreted in favor of repose.” (Citation and punctuation omitted.) Sears v. State, 182 Ga. App. 480, 482 (356 SE2d 72) (1987), overruled on other grounds, Johnston v. State, 213 Ga. App. 579 (445 SE2d 566) (1994). The running of a statute of limitation for a criminal offense is ordinarily not interrupted unless an exception tolls its operation. Id. “[E]xceptions will not be implied to statutes of limitation for criminal offenses, and . . . [a]ny exception to the limitation period must be construed narrowly and in a light most favorable to the accused.” (Citations and punctuation omitted.) Id.; Womack v. State, 260 Ga. 21, 23 (389 SE2d 240) (1990).

1. As to the felony theft by conversion count, OCGA § 17-3-1 (c) requires that prosecution for this offense “shall be commenced within four years after the commission of the crime....” In the present case, however, the State alleged in the indictment that, because the accused and the crime were unknown to the State, the four-year statute of limitation was tolled under the exception set forth in OCGA § 17-3-2 (2). The exception set forth in OCGA § 17-3-2 (2) provides that the limitation period is tolled while “[t]he person committing the crime is unknown or the crime is unknown.” Under this exception, the statute of limitation is tolled until the victim has actual knowledge of the crime — what the victim actually knew. State v. Campbell, 295 Ga. App. 856, 857 (673 SE2d 336) (2009); Beasley v. State, 244 Ga. App. 836, 837-838 (536 SE2d 825) (2000). Constructive knowledge — what the victim should have known — does not extinguish the tolling period. Campbell, 295 Ga. App. at 857. For purposes of this exception, the actual knowledge of the victim is imputed to the State. Id.; Womack, 260 Ga. at 22 (knowledge of the victim is the knowledge of the State); State v. Lowman, 198 Ga. App. 8-9 (400 SE2d 373) (1990) (limitation period does not commence to run until the offense is known to the prosecutor or to the person injured by the offense). It follows that the four-year statute of li mitation for the prosecution of this offense began to run on the date that the victim, Glock, Inc. (Glock), had actual knowledge of the offense. Because the indictment was filed on June 12, 2009, to prove that Jannuzzo was indicted for theft by conversion within the four-year limitation period, the State had the burden of producing evidence that Glock’s first actual knowledge of the offense occurred within four years prior to that date — no earlier than June 13, 2005.

Under OCGA § 16-8-4, a person commits the offense of theft by conversion when he lawfully obtains property of another under an agreement or legal obligation to make a specified disposition of the property, and then knowingly converts the property to his own use in violation of the agreement or obligation. The indictment alleged that on February 12, 1999, while Glock employed Jannuzzo, Glock gave Jannuzzo temporary custody of a LaFrance pistol; that when Jannuzzo left employment with Glock on or about February 13, 2003, he did not return the pistol to Glock; that, after Jannuzzo left employment with Glock, he denied having possession of the pistol; and that, when Jannuzzo was later arrested on August 26, 2007, on an unrelated charge, the pistol was found in his possession. On these allegations, the indictment charged that Jannuzzo committed the offense of theft by conversion of the pistol between February 12, 1999, and August 26, 2007.

At trial, evidence showed that Glock owned guns made by Glock and other manufacturers, including the LaFrance pistol, and that Glock loaned or assigned these guns to various Glock employees to be used for business purposes for demonstration, display, and as sales samples. As required by federal Bureau of Alcohol, Tobacco and Firearms (ATF) regulation, Glock kept written records of the employees to whom the guns had been loaned showing when the gun was loaned and when the gun was returned. Glock’s general counsel at the time of the trial, Carlos Guevara, testified: “As far as Glock requirements to comply to ATF regulations, we have to account for every single pistol, firearm in our possession.” Guevara identified documents kept by Glock in compliance with ATF regulations which showed that the LaFrance pistol was purchased by Glock on August 20, 1997, loaned by Glock to Jannuzzo on November 3, 1997, returned by Jannuzzo to Glock on April 27, 1998, loaned by Glock to Jannuzzo on September 10, 1998, returned by Jannuzzo to Glock on September 15.1998, and loaned by Glock to Jannuzzo on February 12, 1999. The Glock records showed that the pistol was not returned to Glock after it was loaned to Jannuzzo on February 12, 1999. Glock’s vice president of operations, J ames Mathis, part of whose job was to keep track of the loaned guns, testified that in 2001 he took an inventory of the non-Glock guns for the purpose of selling any that were no longer needed. Mathis identified the LaFrance pistol as one of the non-Glock guns, and spoke about the pistol to Jannuzzo, who told him that the pistol was not to be sold, “that one is mine.” Jannuzzo left his employment with Glock in February 2003. Glock’s former general counsel, Kevin Connor, testified that, within a couple of weeks after Jannuzzo left his employment with Glock in February 2003, Jannuzzo called him, told him he had a number of guns in his possession, including the LaFrance pistol, and asked him to find out what the Glock records showed as to who had possession of those guns. Connor said that he told his superior at Glock, Robert Glock, about the conversation with Jannuzzo, and gave Mr. Glock a list of the guns that Jannuzzo said he had in his possession, including the LaFrance pistol. Conner testified that he was directed to take no further action on the matter. Contrary to the allegation in the indictment, no evidence showed that Jannuzzo ever denied having possession of the LaFrance pistol after he left his employment with Glock. Evidence showed that in September 2005, while Glock was in the process of complying with an ATF inspection, Glock’s records still showed that the LaFrance pistol was in Jannuzzo’s possession. At that point, Glock reported to the ATF and to the Smyrna Police Department that the LaFrance pistol was “lost or stolen.” Finally, the State produced evidence that on August 26, 2007, while City of Atlanta police were at Jannuzzo’s residence on an unrelated matter, the LaFrance pistol was found at the residence in Jannuzzo’s possession.

The State produced evidence sufficient to establish Jannuzzo’s theft by conversion of the LaFrance pistol by showing: (1) that Jannuzzo lawfully obtained the pistol owned by his employer, Glock, under an agreement that he could keep possession of and use the pistol only for purposes related to his employment, and therefore only so long as he remained employed by Glock; and (2) that Jannuzzo violated this agreement and knowingly converted the pistol to his own use when he kept the pistol, and did not to return it to Glock, at the time he left his employment with Glock in February 2003. There is no evidence that could support a finding by the jury that the theft by conversion of the pistol occurred at a later time. In compliance with federal regulation, Glock kept written records of the whereabouts of every gun it owned and loaned, and the records showed that Glock knew the pistol remained in Jannuzzo’s possession when he left Glock’s employment in February 2003. Moreover, a couple of weeks after Jannuzzo left employment, Glock’s general counsel received a call from Jannuzzo confirming that he still had the pistol. Construing the four-year limitation period in favor of repose, and construing the tolling provision narrowly and in favor of Jannuzzo, we find no evidence that could support a finding by the jury that Glock’s actual knowledge of the theft by conversion occurred any later than February or March 2003 — more than six years prior to the June 12, 2009 indictment. Lee v. State, 289 Ga. 95, 97 (709 SE2d 762) (2011). It follows that the State failed to carry its burden to prove that Jannuzzo was indicted on the theft by conversion charge within the four-year statute of limitation. Id.

2. As set forth in OCGA § 16-14-8, a five-year statute of limitation applies to the RICO count alleged in the indictment which, unless tolled, “runs from the last overt act during the existence of the conspiracy.” State v. Conzo, 293 Ga. App. 72, 73 (666 SE2d 404) (2008). As set forth above, the RICO count of the indictment alleged that Jannuzzo was part of a conspiracy to engage in a pattern of racketeering activity that consisted of various predicate offenses, the last of which was theft by conversion of the LaFrance pistol, which the State alleged occurred between February 12, 1999, and August 26, 2007. All of the remaining alleged predicate offenses were based on acts which occurred while Jannuzzo was employed by Glock — acts which the evidence showed occurred no later than Jannuzzo’s departure from Glock in February 2003. The State argues there was also evidence supporting predicate offenses in the RICO count which showed that, after Jannuzzo left Glock’s employment, he engaged in acts constituting obstruction of justice. But, as set forth in footnote 1, supra, the trial court struck the portions of the RICO count related to obstruction and removed them from consideration by the jury.

As in the separate theft by conversion count, the State alleged in the RICO count that the applicable limitation period was tolled under OCGA § 17-3-2 (2) on the theft by conversion predicate act because the accused and the crime were unknown to the State. Accordingly, the State contends (as it did on the separate theft by conversion count) that the June 12, 2009 indictment on the RICO charge was within the five-year limitation period because the limitation period was tolled until Glock acquired actual knowledge of the theft by conversion offense less than five years prior to the indictment. See Division 1, supra. But as we found in Division 1, supra, the evidence showed that the theft by conversion occurred no later than February 2003, and that Glock had actual knowledge of this offense (imputed to the State) no later than February or March 2003 — more than six years prior to the indictment.

Where an exception is relied upon to toll the statute of limitation, it must be alleged in the indictment and proved. Moss v. State, 220 Ga. App. 150 (469 SE2d 325) (1996). The State specifically alleged that it was relying upon the exception in OCGA § 17-3-2 (2) to toll the limitation period with respect to the theft by conversion predicate offense. With respect to the other predicate offenses, the State made no specific allegation in the indictment of reliance on OCGA § 17-3-2 (2). Nevertheless, the introductory paragraph of the RICO count contains a general allegation that the RICO offense occurred “between the 28th day of August, 1991, and the 26th day of August, 2007, the exact dates being unknown to the Grand Jury, as contemplated by O.C.G.A. § 17-3-2 (2) .’’Although not clear, this presumablywas intended to allege that the exception in OCGA § 17-3-2 (2) tolled the limitation period with respect to other predicate offenses occurring during Jannuzzo’s employment with Glock because the State lacked knowledge of the offenses. If so, we find that the State did not prove this exception. In fact, the State does not make this argument on appeal, and the record shows that Jannuzzo’s co-conspirator at Glock, Peter Manown, who testified for the State at trial, confessed to Gaston Glock in October 2003 that he and Jannuzzo had conspired to steal from Glock. Accordingly, evidence showed that the victims (and therefore the State) had actual knowledge of these offenses more than five years prior to the June 12, 2009 indictment, and the State produced no evidence or argument to the contrary. Merritt, 254 Ga. App. at 790 (State failed to produce evidence to carry its burden to prove that defendant was indicted within the applicable statute of limitation).

Decided July 9, 2013.

Smith Horvath, John D. Smith, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, D. Victor Reynolds, Assistant District Attorneys, John C. Butters, for appellee.

Because the State failed to carry its burden to prove that Jannuzzo was indicted on the theft by conversion or the RICO count within the applicable statutes of limitation, the convictions must be reversed.

Judgment reversed.

Dillard and McMillian, JJ., concur.

       Other portions of the RICO count relating to alleged obstruction and false statements to police were struck by the trial court and removed from consideration by the jury.

       Jannuzzo contends that theft by conversion of the pistol was not properly included as a predicate offense in the RICO count because it was a single isolated act not sufficiently interrelated to the other predicate offenses to he part of the alleged pattern of racketeering activity, as required by OCGA § 16-14-3 (8). We assume for purposes of this opinion that the theft by conversion offense was sufficiently interrelated with the other predicate offenses. See Overton v. State, 295 Ga. App. 223, 231-232 (671 SE2d 507) (2008); Dorsey v. State, 279 Ga. 534, 540 (615 SE2d 512) (2005).


author: Boggs, Judge.

text:
    A13A0696.
    LEE v. CNH AMERICA, LLC et al.
    (746 SE2d 243)
   Boggs, Judge.

In this product liability action, Hazel Lee, the wife and executrix of Robert Lee, appeals from a defense verdict in favor of CNH America, LLC, and CNH Italia (collectively “CNH”). Mrs. Lee contends on appeal that the trial court erred in charging the jury on assumption of the risk, misuse of a product, and spoliation. She also asserts that the trial court erred by allowing an OCGA § 9-11-30 (b) (6) defense witness to give expert opinion testimony. Based upon the “any evidence” standard of review on appeal, the trial court did not err in its charges, and Mrs. Lee cannot demonstrate prejudice resulting from the alleged opinion testimony offered by the defense witness. We therefore affirm.

The record shows that a new tractor manufactured by the defendants was delivered to Robert Lee on April 30,2007. Three days later, on May 3, 2007, his wife found his body trapped between the elevated cultivator and the rear tractor wheel with the engine running. The evening before Mr. Lee’s death, he called his brother-in-law and told him that he loved his new tractor, that “the lift was all the way up or all the way down,” and asked him to “come that Saturday to try to help him figure out what it was.” Evidence presented at trial showed that Lee had owned three or four tractors for over thirty-five years before purchasing the CNH tractor, was mechanically inclined, and “could fix anything.”

The tractor included a “lift-o-matic” feature (also called “the fast raise/fast lower system”) that allowed the operator to flip a single switch to quickly raise or lower any attached implement. This switch was located on the right side of the operator’s seat. The tractor also included a height limit adjustment knob that was used to adjust the preset height at which an attached implement would raise when the lift-o-matic switch was in the “fast raise” position. This knob was located on the rear of the tractor behind the operator’s seat. In order to adjust the preset height, the operator would have to get out of the operator seat and go behind the tractor “in between the tractor and the implement.” If the height limit adjustment knob is loosened while the tractor is running and the lift-o-matic switch is in the fast raise position, the implement will instantly raise to its full height.

It is undisputed that Lee read the operator’s manual for the tractor “every night” and that he received a copy before the tractor was delivered. The operator’s manual contained numerous warnings about turning the tractor engine off before servicing or adjusting the tractor or its implements. Additionally, the portion of the manual addressing the height limit adjustment feature instructed the operator to place the lift-o-matic feature in the fast lower position and to “switch off the engine” before loosening the knob. If the lift-o-matic feature had been placed in fast lower or the engine had been turned off, Lee would not have been crushed during any attempt to adjust the knob while standing between the implement and the tractor. Finally, a sticker on the right rear fender of the tractor stated: “Lift raises or drops completely when fast raise/lower lift control is operated. Do not stand on the implement or in between implement and tractor while operating fast raise/lower lift control or injury may result.” The jury heard evidence that, two months after Lee’s death, CNH changed the warning on its tractor and in its manual “related to the height limit adjustment feature and being back there with the engine running.”

The salesperson who sold the tractor to Lee testified that when he delivered the tractor, Lee asked him to explain the fast raise and lower system. The salesperson explained the proper procedure and demonstrated it “half a dozen or more times” before asking Lee to “do it two or three times.” When “demonstrating the proper procedure to adjust the height limit function,” the salesperson “instruct[ed] him to turn the engine off before loosening the knob.” The salesperson did not tell Lee he would be exposing himself to danger or risk if he failed to turn the engine off because Lee had “been around tractors and equipment all his life” and it would have been insulting to tell him something he already knew. According to the salesperson, the risk of going between the tractor and the implement when the engine was running was “open and obvious” and one which he believed that Lee understood. After spending almost two hours with Lee, the salesperson believed that Lee knew how to use the lift-o-matic and height limit control features properly and that Lee understood that the engine should be off when the height limit was adjusted. Each time the salesperson or Lee practiced adjusting the height control in the back of the tractor, he turned the engine off before doing so.

While CNH’s counsel asked Lee’s counsel to inspect the tractor on July 5, 2007, less than two months after the accident and before any lawsuit had been filed, their request was refused, and they were not allowed to do so until August 2009, over two years after Lee’s death and four months after Mrs. Lee filed her complaint. In the intervening period, the tractor was inspected by two consultants on behalf of Mrs. Lee, and her son operated the tractor during the inspection, doing “what they told me to do.” During his testimony at trial, the son denied that he or the consultants turned any knobs behind the tractor. On February 2, 2009, the tractor was transferred to Benedict Engineering in Florida and stored in unknown conditions. On July 13, 2009, the tractor was moved to Weil Wrecker in Birmingham, Alabama and stored in an enclosed building that may not have had climate control.

During his inspection of the tractor in August 2009, John Bucher, a product performance specialist with CNH, obtained permission from plaintiff’s representative before loosening the height adjustment knob. Bucher testified at trial that “[t]he first time I went to loosen the knob I made the comment, wow, it’s tight and I couldn’t loosen it,. . . it was extremely tight.” He assumed that the cam may have been paint stuck which “would eliminate the possibility that Mr. Lee loosened the knob and the lift came up.” When he later learned from the dealer that the cam was loosened before delivery, he eliminated the paint stuck theory.

The record shows that Bucher testified in his deposition about the following “possibilities” of what may have happened to Lee: (1) “Lee was behind the tractor and the engine was running, someone else could have been on the seat and could have hit the fast raise/lower or could have raised the position lever”; (2) “[w]hile Lee was behind the tractor, he could have reached up over the rear of the tractor and stood on the three-point hitch arm and reached up over the tractor and either latched or unlatched the fast raise/lower into the raised position ... and maybe lost balance and fell off and ... at that point, the whole three-point hitch was coming up the whole way”; and (3) “[t] here’s a possibility that he chose to keep the engine running and went back there and tried to adjust the height limit control.” At trial, Bucher testified that scenario number 3 could not happen if the knob was as tight at the time of the accident as it was during his inspection. He explained that he heard several times during the trial “that the height limit adjustment was not touched before [his] inspection.” He testified that as a result, he now leaned toward scenario number 2.

During cross-examination, plaintiff’s counsel elicited testimony that the tractor was stored outside for some period after Lee’s death, pointed to pictures showing rust around the cam and the knob at the time of Bucher’s inspection two years later, and suggested that rust can cause mechanical equipment to tighten up. During redirect, Bucher testified that he wanted to inspect the tractor as soon as he could after the accident “in as pristine a condition as possible . . . before anything had a chance to tighten.”

At trial, the plaintiff’s expert, with a Ph.D in mechanical engineering, testified that during his August 2010 inspection of the tractor (one year after CNH inspected the tractor), he discovered that he could not adequately tighten the height adjustment knob with an ungloved hand, but admitted on cross-examination that he was missing the index finger on his right hand and that he may have weakened hand strength. When he tightened it with an ungloved hand, the implement would come all the way up instead of to the preset height because the cam would slip. He also testified that the tractor should have been designed so that the operator could adjust the preset height limit without “get[ting] into the hazard zone between the back of the tractor and the implement,” a lever instead of a knob should have been used to adjust the preset height limit so that it could be adjusted with an ungloved hand, and the manual and decals on the tractor did not adequately warn of the danger of adjusting the preset height limit while standing between the tractor and implement with the engine running.

Plaintiff’s expert also addressed Bucher’s three accident scenarios and concluded that there were no facts to support scenario number 1, and scenario number 2 was not likely based upon the position of Lee’s body when he was discovered. In his opinion, Lee “more likely than not,. .. was in there trying to figure out what was going on with this height limit adjustment and the mechanism came up on him and trapped him.” He acknowledged that “Lee obviously made a mistake in getting between the implement of the tractor and the rear of the tractor while it was running.”

He also testified to his

observation that if this thing is not tight enough or if it’s moved just a little bit, what we observed in this video was that just shaking the plow caused it to come up, but if you move the adjustment knob, it’s going to come up and it’s going to get you. And if you’re in that mouse trap when it comes up, I think you’re caught.

In his opinion, “there was a problem with the height limit adjustment feature being able to maintain the level or the preset position of the height limit adjustment feature” due to a “too small” diameter for the adjustment knob. The expert did not know whether Lee “twisted the knob and it got him or if it just came up when he was in that area.” Finally, he testified that it was reasonably foreseeable to CNH “that somebody would be between the implement and the tractor with the engine running.” He admitted during cross-examination that the crush hazard was “obvious” and that an experienced user would “understand that if the lift come[s] up, they will get crushed. It’s sort of like walking across the street. People walk across the street everyday. They know that if the truck hits them, they’re going to be smashed, but they think they can make it across the street.”

1. (a) Mrs. Lee contends that the trial court erred by giving the pattern jury charge on assumption of the risk based upon the alleged lack of evidence that Lee had subjective knowledge “of the danger for death and serious injuries posed by going between the tractor and the implement while operating the lift-o-matic feature when the engine was running.” The suggested pattern jury charge on assumption of the risk for product liability cases given by the trial court provides:

If a person knows of a product’s defect and is aware of the danger but nevertheless proceeds unreasonably to make use of the product, he/she cannot later hold another person responsible for any injury suffered due to taking such a risk. If you find by a preponderance of the evidence that
1) the plaintiff knew of the danger posed by the defective product,
2) the plaintiff understood and appreciated the risks of that defect, and
3) the plaintiff knowingly and voluntarily exposed himself/herself to such a risk, then the plaintiff would not be entitled to recover for the resulting injury or damages, and you would return a verdict for the defendant.

Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 62.710 (5th ed. 2007).

CNH argues that this charge was warranted based upon the evidence that Lee told his brother-in-law that the lift-o-matic feature of the tractor was malfunctioning (either all the way up or all the way down), that Lee may have been behind the tractor with the engine running to investigate this known malfunction, that the area between the tractor and the implement was an obvious crush zone, that Lee had read the manual which instructed the operator to turn off the engine before attempting to adjust the height limit, that the proper procedure to adjust the height limit with the engine turned off was demonstrated to Lee multiple times, and that Lee practiced doing it correctly multiple times.

The trial court did not err by giving the pattern charge on assumption of the risk in this product liability case. See The Dixie Group v. Shaw Indus. Group, 303 Ga. App. 459, 464-466 (2) (693 SE2d 888) (2010) (issue of whether decedent assumed risk of working “on the machine without locking it out as he had been trained and instructed to do” for jury to determine). “When there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to the issue.” (Citation and footnote omitted; emphasis supplied.) Deloach v. Deloach, 258 Ga. App. 187, 189-190 (3) (573 SE2d 444) (2002).

We will not overturn a trial court’s decision to give a particular jury charge if there was any evidence presented at trial to support giving the charge. In determining whether some evidence exists to support an instruction, an appellate court is not authorized either to weigh existing evidence or to judge witness credibility as these matters are within the province of the jury.

(Citation and punctuation omitted; emphasis supplied.) Collins v. Mitchell, 282 Ga. App. 860, 861 (1) (640 SE2d 364) (2006). Additionally, circumstantial evidence may be used to “infer that [the injured party] must have known and understood the alleged defect and danger flowing therefrom prior to the incident.” Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 846 (1) (321 SE2d 353) (1984), overruled on other grounds, Banks v. ICI Americas, 264 Ga. 732, 734 (1) (450 SE2d 671) (1994).

(b) Likewise, the trial court did not err by refusing to give the assumption of the risk charge offered by Lee. While this charge may have provided additional explanation about the subjective knowledge required for an assumption of the risk defense, see generally Muldovan v. McEachern, 271 Ga. 805, 808 (2) (523 SE2d 566) (1999), the pattern charge given by the trial court adequately covered the principle. See Barger v. Garden Way, 231 Ga. App. 723, 728-729 (7) (499 SE2d 737) (1998) (finding no error in charge when substance of requests was thoroughly and accurately stated in product liability case).

2. Mrs. Lee asserts that the trial court erred “in allowing the defendants to assert ‘misuse of product’ as an affirmative defense when the decedent’s use was reasonably foreseeable to the defendants.” The trial court gave the following suggested pattern jury charge:

A product that is safe if used in a normal manner is not ordinarily a defective product. If a person uses a product in an abnormal manner and is injured because of such abnormal use, the manufacturer is not liable for such injury. However, if the manufacturer had reason to anticipate or foresee that the product might be used in this abnormal manner and that such use might result in injury and, knowing these facts, failed to give adequate warning against using the product in this manner, then the manufacturer may be held liable for the resulting injury.

Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 62.681 (5th ed. 2007).

The trial court did not err by giving this charge based upon evidence showing that Lee was found behind the tractor with the engine running and that the decals on the tractor and instructions in the manual instructed the operator to turn the engine off. The jury was authorized from this evidence to consider whether Lee used the tractor in an abnormal manner, whether the abnormal use was foreseeable to CNH, and whether CNH gave an adequate warning against any such misuse. The trial court did not err by giving the pattern jury charge on misuse of a product. See Gurin v. Gen. Motors Corp., 171 Ga. App. 159, 160 (1) (318 SE2d 830) (1984) (trial court did not err by giving charge on misuse in product liability case).

3. Mrs. Lee maintains that the trial court erred by charging the jury on spoliation. As the trial transcript does not include the charge conference, we cannot determine what findings may have been made by the trial court before it decided to give the spoliation charge. The trial court denied CNH’s motion for summary judgment based upon spoliation before trial; that motion was grounded only upon the refusal to allow it to inspect the tractor two months after the accident and the inspection by two unidentified consultants before they were provided an opportunity to inspect the tractor.

At the beginning of trial, the trial court ruled that CNH could cross-examine witnesses about the inspection by the consultants and the refusal of their request for an inspection, but not use the word spoliation in its opening statement or during cross-examination. Immediately before the charge conference, which was not transcribed, CNH’s counsel mentioned that it was entitled to a spoliation presumption based upon cross-examination attempting to show that the adjustment knob was tight at the time of Bucher’s inspection due to rust.

“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Such conduct creates the presumption that the evidence would have been harmful to the spoliator.” (Citation and punctuation omitted.) Clayton County v. Austin-Powell, 321 Ga. App. 12, 16 (2) (740 SE2d 831) (2013). “A trial court has wide discretion in resolving spoliation issues, and we will not disturb the court’s ruling absent abuse.” (Citations and punctuation omitted.) Kitchens v. Brusman, 303 Ga. App. 703, 705 (1) (694 SE2d 667) (2010).

In this case, there is no question that the evidence existed and that litigation was contemplated at the time CNH’s request to inspect the tractor was denied, because the request letter was sent by CNH’s counsel to Mrs. Lee’s counsel. Based upon plaintiff’s counsel’s attempt to show during the trial that the tightness of the critical knob was due to rust, the trial court did not err by charging the jury on the general presumption arising against a party who failed to preserve evidence necessary to contemplated or pending litigation. As there was evidence supporting the trial court’s decision to charge on spoliation, we cannot conclude that it erred by giving this charge. See generally Deloach, supra (“any evidence” standard of review for jury charges); Pacheco v. Regal Cinemas, 311 Ga. App. 224, 226-227 (1) (b) (715 SE2d 728) (2011) (trial court did not err by giving charge on presumption arising from spoliation).

Plaintiff’s claim on appeal that the charge was inappropriate because there was no evidence showing that she allowed rust to develop in bad faith has no merit. See Amli Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 363 (1) (a) (iii) (667 SE2d 150) (2008) (“Exclusionary sanctions maybe appropriate where the spoliator has not acted in bad faith.”). Likewise, plaintiff’s claim that the trial court erred by failing to make factual findings has no merit, particularly when the charge conference was not transcribed. See R&R Insulation Svcs. v. Royal Indem. Co., 307 Ga. App. 419, 436 (7) (a) (705 SE2d 223) (2010) (affirming trial court’s decision on spoliation based upon our obligation on appeal “to presume that the trial court knows and applies the correct law”).

4. In her remaining enumeration of error, Mrs. Lee contends that the trial court erred by allowing CNH witness John Bucher to offer expert opinions when he was never disclosed or qualified as an expert. We are not persuaded by this contention, however, because the record shows that at the beginning of the trial, Mrs. Lee’s counsel agreed that Bucher could testify “based on his firsthand knowledge as the corporate representative, and as long as we’re sticking to that, that’s in his deposition, then I don’t have a problem.” Additionally, the expert witness retained by Mrs. Lee testified at trial about each of the three scenarios outlined by Bucher in his deposition before Bucher testified about them, and admitted that scenario number 3 was impossible if the adjustment knob was tight and the machine was operating properly at the time of the accident.

Based on this evidence, Mrs. Lee cannot establish any harm flowing from Bucher’s alleged expert testimony. Bucher’s testimony that the knob was tight at the time of his inspection was a factual observation, not an expert opinion, and his testimony that he could rule out scenario number 3 based upon the tightness of the knob and testimony at trial that the knob had not been moved before his inspection was cumulative of the plaintiff’s expert’s testimony during cross-examination. See, e.g., Yang v. Smith, 316 Ga. App. 458, 466 (2) (b) (ii) (728 SE2d 794) (2012).

Decided July 9, 2013.

Beasley, Allen, Crow, Methvin, Portis & Miles, Benjamin E. Baker, Jr., for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Brannon J. Arnold, Johnathan T. Krawcheck, for appellees.

Based on our holdings in Divisions 1-4, we affirm the jury’s verdict in favor of CNH.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       CNH Italia manufactured the tractor at issue, and CNH America marketed, distributed, and sold the tractor.

       Bucher’s background and training included: diplomas from high school and a technical school for welding and blueprint reading, work as a service technician and manager for a John Deere dealership, completion of a four-year prototype specialist training program with Ford New Holland, eight years work building and testing prototype tractors and hay tools, seven years work in product technical support, and four years work as a performance specialist. CNH sells New Holland tractors.

       CNH submitted evidence that over 35,000 tractors had the same size adjustment knob and no incidents of it not being able to hold the cam had been reported to them.


author: McFadden, Judge.

text:
    A11A0445.
    STOLTE et al. v. FAGAN et al.
    (746 SE2d 255)
   McFadden, Judge.

This is an appeal from the judgment entered on the defense verdict in a dental malpractice action. We affirmed in Stolte v. Fagan, 311 Ga. App. 123 (714 SE2d 339) (2012). In Stolte v. Fagan, 291 Ga. 477 (731 SE2d 653) (2012), our Supreme Court reversed and remanded. We therefore vacate our earlier decision.

The appellant enumerated refusal to strike certain prospective jurors for cause and failure to rebuke defense counsel after an objection to his closing argument had been sustained. As to both we held that we could not reach the merits, and as to both the Supreme Court reversed. The Supreme Court also reversed our determination that we could not reach the merits of an improper-argument issue that was not preserved in the trial court. That error, the Supreme Court held, should be analyzed to determine whether the improper argument, in reasonable probability, changed the result of the trial.

As to jury strikes, we followed a line of cases holding that the denial of a motion to strike for cause would be deemed harmful only if the complaining party had used all allotted peremptory strikes. We noted that a line of cases, beginning with Harris v. State, 255 Ga. 464, 464-465 (339 SE2d 712) (1986), had applied a contrary rule in criminal cases, but had not been extended to civil cases. The Supreme Court has now extended Harris to civil cases and overruled the cases on which we relied.

As to failure to rebuke after granting an objection to an improper closing argument, we overlooked both another criminal case, O’Neal v. State, 288 Ga. 219 (702 SE2d 288) (2010), which held that when trial courts sustain such objections, they must take remedial action of their own initiative, and also overlooked certain secondary authority cited by the Supreme Court which suggests that O’Neal is applicable in civil cases as the statute construed there, OCGA § 17-8-75, mirrors the corresponding civil statute, OCGA § 9-10-185. The Supreme Court has now extended O’Neal to civil cases and overruled the cases which had held to the contrary.

With these holdings in mind, we find that defense counsel’s improper reference in closing argument to the defendant’s reputation, which the trial court failed to correct, could have affected the jury’s verdict. Accordingly we reverse the judgment and do not reach the jury charge issue nor the other improper-argument issue.

1. Facts and proceedings below.

Kerry Stolte and her husband filed this action alleging professional negligence against dentist M. James Fagan III and his practice. The case was tried before a jury. Fifty-one minutes into his closing argument, as he was winding up, defense counsel said, “This is a very serious matter. [Fagan’s] conduct, his reputation, his treatment, his care [have] been called into question this week.” The trial court sustained the plaintiffs’ objection to the reputation comment and instructed defense counsel to move on, but failed to give a curative instruction or to rebuke defense counsel.

Defense counsel resumed his closing argument and, within seconds, said:

Jim Fagan has dedicated his entire professional career to treating patients — to treating dental patients. Getting up, going to the office, to treat the patient, to do a root canal, to do an extraction, to doing whatever needs to be done; and he’s been there for his patients. Patients everyday in this town, the town we all live in, trust Jim Fagan for extractions, for dental implants, putting prosthetic teeth in, they trust him for root canals, they trust him for cleanings.
Every day people sit down in those three examination chairs and say: Dr. Fagan, here I am. Make me better. Take out that tooth. Perform that root canal. Put a crown on my tooth. Build me a bridge so I can get out of pain and get better.
If the patients of Atlanta, the patients of Sandy Springs, the patients of Georgia, can trust Jim Fagan and find him to be a reasonable person and entrust him with their mouth[s] and trust him to do the things that need to be done from a dental standard of care point, you can trust him, too.

Plaintiffs’ counsel failed to object contemporaneously to the trust remarks.

After deliberating for nearly seven hours, the jurors could not reach a verdict, sending a note to the judge that they were “at an impasse and unable to come to a unanimous decision.” The court adjourned for the weekend. After reconvening, the jury deliberated for several hours more, and then reached the defense verdict.

2. The improper comments in closing argument.

In its opinion, the Supreme Court characterized both the reputation comments and the trust comments as improper. Stolte, 291 Ga. at 482 (2) (a), 483 (2) (b). We hold that the uncorrected improper reputation comment could have affected the jury’s verdict. We therefore reverse the defense verdict. Accordingly, we are not required to determine whether the improper trust comments in reasonable probability changed the result of the trial.

(a) The reputation comment.

Once the trial court sustained the plaintiffs’ objection to the comment about Fagan’s reputation, “the court assumed an independent duty [under OCGA § 9-10-185] to take some remedial action,” but it took none. Stolte, 291 Ga. at 481 (2) (a). (The court’s inserting a reference to “reputation” into the standard sympathy charge was inadequate to meet this duty. Id. at 479 (2), 481 (2) (a).) We therefore must determine whether “the uncorrected improper argument could have affected the jury’s verdict.” Id. at 482 (2) (a) (emphasis supplied). Compare id. at 483 (2) (b) (because plaintiffs did not contemporaneously object to defense counsel’s improper argument that the jury could “trust” defendant, the issue was “whether the improper argument in reasonable probability changed the result of the trial.”) (emphasis supplied).

We conclude that the uncorrected improper reputation argument could have affected the jury’s verdict. The jury was not specifically told to disregard the argument, nor was defense counsel rebuked. And within moments, defense counsel made another improper argument, which the trial court never corrected, telling the jurors that they could trust Fagan as the community trusted him. The uncorrected improper trust comments exacerbated the impact of the uncorrected improper argument about reputation. The jurors, who were “at an impasse” before adjourning for the weekend, may well have eventually relied upon the uncorrected erroneous reputation argument to conclude that they, like other members of the community, should trust Fagan and return a defense verdict so as not to damage his reputation. “Since it cannot be established that the general verdict in [Fagan’s] favor was unaffected by the uncorrected erroneous argument, it follows that the judgment must be reversed and a new trial held.” Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga. App. 622, 625 (1) (610 SE2d 546) (2005) (citation omitted), overruled on other grounds by Smith v. Finch, 285 Ga. 709 (681 SE2d 147) (2009).

Decided July 10, 2013.

Lamar, Archer & Cofrin, Robert C. Lamar, Keith A. Pittman, for appellants.

Hall, Booth, Smith & Slover, Terrell W. Benton III, Dean T. Cleaveland, for appellees.

(b) The trust comments.

As noted above, the Supreme Court held that defense counsel’s trust remarks were improper. Stolte, 291 Ga. at 483 (2) (b). But because the plaintiffs did not contemporaneously object, the improper argument would entitle them to a new trial only if the improper argument in reasonable probability changed the result of the trial. Id. Given our reversal because of the reputation comment, we need not make this determination.

3. The failure to excuse allegedly unqualified jurors.

Similarly, because we reverse on the basis of the reputation comment, we do not address the plaintiffs’ claims of error regarding jury selection.

Judgment reversed.

Phipps, C. J., and Andrews, P. J., concur.