WILLIAMS v. HARVEY ( 2021 )

In the Supreme Court of Georgia
Decided: May 17, 2021
S20G1121. WILLIAMS v. HARVEY et al.
MCMILLIAN, Justice.
Rubin Harvey, while driving a dump truck in the course of his
employment with Oxford Construction Company, collided with a
tractor driven by Johnny Williams, causing severe injuries to
Williams. After Oxford conceded liability in the ensuing lawsuit, the
jury returned a general verdict for $18 million. The defendants
appealed, and the Court of Appeals reversed, holding that, although
the defendants did not make a contemporaneous objection,
Williams’s counsel made an improper and prejudicial statement in
closing argument that clearly violated the trial court’s order
granting the defendants’ motion in limine. See Harvey v. Williams,
354 Ga. App. 766, 770 (1) (a) (841 SE2d 386) (2020). We granted
Williams’s petition for certiorari and posed a single question:
Whether a party must object to argument of counsel that
allegedly violates a granted motion in limine in order to
preserve the issue for appeal?
For the reasons set forth below, we answer in the affirmative and
reverse the judgment of the Court of Appeals.1
The Court of Appeals summarized the underlying facts as
follows:
On April 11, 2013, Williams was driving a tractor for
a local pecan farmer when a loaded dump truck driven by
Harvey, an employee of Oxford, hit the back of his tractor.
Williams was thrown from the tractor and ended up in a
ditch on the side of the highway. As a result of the
collision, Williams sustained severe injuries, including
but not limited to a traumatic brain injury, multiple
fractures (including a cracked skull), and the onset of
seizures. In addition, while in the hospital for treatment,
he developed sepsis. After spending approximately six
weeks in the hospital, Williams was transferred to a
rehabilitation center for patients with traumatic brain
and other injuries where he was evaluated by several
specialists and participated in different types of therapy.
Williams was discharged to his home after approximately
five weeks with the instruction that he would require 24-
hour supervision.
At the time of the collision, Williams was 67 years
old and was physically active. He enjoyed doing yard
work, going to church and singing in the choir, and being
1 We are assisted in answering this question by the amicus brief filed by
Butler Wooten & Peak LLP.
2
around his family and friends. As a result of the traumatic
brain injury he sustained in the accident, Williams
requires 24-hour care for his day-to-day activities,
requires medication to prevent seizures, has dementia,
has trouble walking, has trouble emotionally because he
gets agitated and confused, and has sexual dysfunction.
When he walks, his gait is very slow and unsteady, and
he has to wear a gait belt because he is at high risk
for falling. At the time of trial, Williams was living at
home and receiving care from certified nursing assistants
24 hours a day.
A life care plan was prepared for Williams, and it
included two options — the first option was for him to stay
in the home environment and the second option was for
him to move to a residential memory care unit. Because
the home care option was only available so long as a
family member lived with Williams in the home, the life
care planner added the memory care unit option in the
event a family member was unable to live with him for a
temporary or extended period of time. An economics
expert calculated the present value of the life care plan,
assuming that Williams would live 11.57 years, and
valued the home care option at $2,146,805 and the
memory care unit option at $773,212. The economist also
calculated lost earnings and modest fringe benefits to age
72½ in the amount of $85,524. Williams’s medical
expenses totaled $1,150,054.15. Thus, with the home care
option, the total special damages would be $3,382,383.15,
and with the memory care unit option, the total would be
$2,008,790.15.
During opening [statements], Williams’s counsel
informed the jury that they would be seeking
approximately $3.4 million in special damages and $20
3
million for pain and suffering. Counsel for Oxford and
Harvey informed the jury during opening [statements]
that they were admitting that Harvey was negligent and
that he had caused the accident, and that the only issue
to be resolved was the amount of compensation Williams
should receive. Defense counsel suggested that fair and
reasonable compensation would be between $4.1 million
and $5.1 million, which would include payment of the
claimed medical expenses and lost wages and future care
in the amount of $1.5 million, representing the
approximate average between the cost of in-home care
and the cost of the memory care unit, as well as pain and
suffering of $1.5 million to $2.5 million. During closing
argument, counsel for both parties repeated their
suggestions as to the appropriate award for Williams. The
jury returned a verdict for $18 million. Following the
verdict, the trial court credited Oxford and Harvey with
an insurance company payment in the amount of
$5,432,103.84 and entered judgment in favor of Williams
in the amount of $12,567,896.16. The trial court also
awarded prejudgment interest in the amount of
$1,865,753.42 because Oxford and Harvey failed to accept
Williams’s pretrial demand of $6 million, which was made
in accordance with OCGA § 51-12-14 (a).
Oxford and Harvey filed a motion for new trial in
which they argued, inter alia, that Williams’s counsel
violated several of the court’s motion in limine rulings
during closing argument, including the ruling prohibiting
arguments offered predominantly to overly inflame the
emotions of the jury and the ruling prohibiting a violation
of the “golden rule.” Oxford and Harvey also argued that
Williams was not entitled to prejudgment interest
pursuant to OCGA § 51-12-14. Following a hearing, the
trial court denied the motion for new trial. In its order,
4
the trial court specifically addressed the potential “golden
rule” violation and the prejudgment interest issue but
only mentioned in general terms the claimed violation of
the ruling prohibiting arguments offered predominantly
to overly inflame the emotions of the jury [before holding
there was no violation].
Harvey, 354 Ga. App. at 766-68.
In the relevant motion – motion in limine number 33 – the
defendants sought to exclude “[s]tatements, contentions,
arguments, inferences, or proffer of any evidence to elicit sympathy
for the Plaintiff or any individual.” The trial court reserved ruling
on the motion as to potential testimony or evidence, finding the
motion overly broad and too vague, but also stated: “Nevertheless,
any statements, arguments, or evidence offered predominantly to
overly inflame the emotions of the jury or to [e]licit excessive or
undue sympathy, hostility, or prejudice for or against either party is
prohibited.” In reversing the judgment, the Court of Appeals held
that Williams’s closing argument, in which counsel compared the
life care plan with the nursing home option to a “death warrant,”
“clearly violated the trial court’s ruling precluding argument offered
5
predominantly to overly inflame the emotions of the jury.” Id. at 768
(1) (a). And, although there was no contemporaneous objection, the
Court of Appeals, relying on Central of Ga. R. Co. v. Swindle, 260
Ga. 685, 687 (398 SE2d 365) (1990), held that the trial court’s ruling
on the motion in limine was sufficient to preserve the issue for
appeal, and that the error was harmful. See Harvey, 354 Ga. App.
at 769-70 (1) (a). We granted certiorari to consider this part of the
Court of Appeals’s opinion.
1. We begin our analysis by examining the evolution of
Georgia’s contemporaneous objection rule in the context of a
purported violation of a motion in limine during trial. The
contemporaneous objection rule, which has been a cornerstone of
Georgia trial practice for over 150 years, 2 generally requires that,
“in order to preserve a point of error for the consideration of an
appellate court, counsel must take exception to the alleged error at
the earliest possible opportunity in the progress of the case by a
2See, e.g., Goodtitle v. Roe, 20 Ga. 135, 140 (1856); Burtine v. State, 18
Ga. 534, 537 (1855).
6
proper objection made a part of the record.” Sharpe v. Ga. Dept. of
Transp., 267 Ga. 267, 267 (1) (476 SE2d 722) (1996) (citation and
punctuation omitted). This requirement affords the trial court the
opportunity to take remedial action if necessary at the time the
alleged error is made, thereby reducing the likelihood that a motion
for new trial or appeal will result in reversal of the final judgment.
See Weldon v. State, 297 Ga. 537, 541 (775 SE2d 522) (2015)
(“Failure to raise the issue deprives the trial court of the opportunity
to take appropriate remedial action and waives appellate review of
any alleged impropriety.”); Miller v. State, 267 Ga. 92, 92 (2) (475
SE2d 610) (1996) (addressing the defendant’s failure to object to
alleged improper closing argument at the time it occurred in order
to afford the trial court the opportunity to take remedial action).
A motion in limine is a pretrial motion that may be used in two
ways: (1) to obtain a final ruling on the admissibility of evidence
prior to trial or (2) to prevent the mention of certain evidence or an
area of inquiry until its admissibility can be determined during the
course of trial outside the presence of the jury. See State v. Johnston,
7
249 Ga. 413, 415 (3) (291 SE2d 543) (1982). See also Tollette v. State,
280 Ga. 100, 103 (8) (621 SE2d 742) (2005) (noting that, in addition
to evidence, a motion in limine may seek to limit a specific argument
at trial). “The trial court has an absolute right to refuse to decide the
admissibility of evidence, allegedly violative of some ordinary rule of
evidence, prior to trial.” Johnston, 249 Ga. at 415 (3). Where,
however, the trial court does rule on the admissibility of evidence or
argument prior to trial, this determination controls the subsequent
course of action. See id.In Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (260 SE2d
20) (1979), this Court held for the first time that when a motion in
limine to exclude certain evidence was denied, the moving party
need not renew its objection when the same disputed evidence is
offered at trial in order to preserve its right to appeal the denial of
the motion. See id. at 286 (1). Looking to Federal Rule of Evidence
103 as it then existed, the Court reasoned that where the trial court
has been apprised of the possible error in admitting evidence and
has made its ruling, the record has been perfected for the purpose of
8
appeal and there is no reason for another objection that may further
highlight the inflammatory evidence and unduly burden the trial
court. See id. Three years later, we concluded that the same
reasoning also applies when a motion in limine to exclude evidence
was granted. See Reno v. Reno, 249 Ga. 855, 856 (1) (295 SE2d 94)
(1982). The Court explained that to require a successful movant to
object when evidence encompassed by a motion in limine is
nevertheless offered at trial “would defeat the purpose of the motion”
because the movant would be forced “to call special attention to the
prejudicial evidence” in the jury’s presence. Id. at 856.
Eventually, and without explanation or analysis, the Court of
Appeals began applying the rules announced in Daniel and Reno to
motions in limine related to argument as well as evidence. See, e.g.,
Hernandez v. State, 291 Ga. App. 562, 565 (1) n.3 (662 SE2d 325)
(2008) (although the defendant did not object to the prosecutor’s use
of the term “illegal immigrant” in closing argument in violation of a
motion in limine, alleged error was preserved for appellate review);
Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 878 (1) (447 SE2d
9
302) (1994) (although the plaintiffs presented no evidence of similar
incidents, counsel’s repeated references to other lawsuits and deaths
during opening statement, questioning of witnesses, and closing
argument violated motion in limine ruling and defendant was not
required to object at trial to preserve the matter for appellate
review). But see Ralston v. State, 170 Ga. App. 389, 390 (317 SE2d
221) (1984) (questioning whether Reno’s holding applies to alleged
improper argument by counsel). This Court has never applied Reno’s
holding to argument by counsel that allegedly violated a motion in
limine. 3
(a) OCGA § 24-1-103 and Federal Rule of Evidence 103.
In 2000, Rule 103 of the Federal Rules of Evidence was
3 The Court of Appeals cited Swindle to support its conclusion that no
contemporaneous objection was required to preserve the alleged violation of
the motion in limine for appellate review. See Harvey, 354 Ga. App. at 769 (1)
(a). However, nowhere in the majority opinion in Swindle did this Court rely
upon a violation of a motion in limine during argument to support reversal.
Instead, the Court pointed to plaintiff’s attempt to establish improper motive
throughout the trial, which culminated in the “pejorative nature of plaintiff’s
closing argument.” Swindle, 260 Ga. at 687 & n.1 (“Notwithstanding the ruling
of the trial court on the motion in limine,” a “‘detailed appraisal of the evidence
bearing on damages demanded the conclusion that the plaintiff’s attempt to
establish improper motive permeated the trial . . . .’”).
10
amended to clarify that, once a trial court has definitively ruled on
the record, a party need not renew an objection to preserve a claim
of error for appeal. See Fed. R. Evid. 103 (b) (“Once the court rules
definitively on the record –either before or at trial –a party need not
renew an objection or offer of proof to preserve a claim of error for
appeal.”). This amendment applies to all evidentiary rulings,
including rulings on motions in limine. See, e.g., Tampa Bay Water
v. HDR Engineering, Inc., 731 F3d 1171, 1178 (II) (A) (11th Cir.
2013). Significantly, however, the Advisory Committee’s Note on the
2000 amendments to Rule 103 explains:
Even where the court’s ruling is definitive, nothing in the
amendment prohibits the court from revisiting its
decision when the evidence is to be offered. If the court
changes its initial ruling, or if the opposing party violates
the terms of the initial ruling, objection must be made
when the evidence is offered to preserve the claim of error
for appeal. The error, if any, in such a situation occurs
only when the evidence is offered and admitted.
(Emphasis supplied.) See also ML Healthcare Svcs., LLC v. Publix
Super Markets, Inc., 881 F3d 1293, 1305 (II) (E) (11th Cir. 2018)
(relying on this Advisory Committee’s Note); 21 Charles A. Wright
11
& Kenneth W. Graham, FEDERAL PRACTICE & PROCEDURE § 5037.16
(2d ed. 2005) (“Since the error is not in granting or denying the
motion in limine, but in admitting or excluding the evidence at trial,
the motion in limine does not preserve this error.” (citing several
federal appellate decisions)).
In 2011, the General Assembly enacted Georgia’s current
Evidence Code, which is largely patterned after the Federal Rules of
Evidence; the current code took effect on January 1, 2013. See Ga.
L. 2011, p. 99, § 1. Since then, we have held that, based on the
preamble to the act adopting the new Evidence Code, if a rule in the
new Evidence Code “is materially identical to a Federal Rule of
Evidence, we look to decisions of the federal appellate courts
construing and applying the Federal Rules, especially the decisions
of the United States Supreme Court and the Eleventh Circuit, for
guidance.” Harris v. State, 320 Ga. 372, 378 (2) (b) n.14 (850 SE2d
77) (2020) (citation and punctuation omitted). See also Beck v. State,
310 Ga. 491, 498 (3) n.3 (852 SE2d 535) (2020) (explaining that a
judicially created evidentiary rule was abrogated by the adoption of
12
the new Evidence Code). We have also concluded previously that the
“Advisory Committee Notes to the Federal Rules of Evidence are
highly persuasive in interpreting provisions of Georgia’s current
Evidence Code . . . that are materially identical to provisions of the
Federal Rules of Evidence that were in effect when the current
Evidence Code was adopted.” State v. Smith, ___ Ga. ___, ___ n.4
(Case No. S21A0086, decided April 19, 2021) (citing State v.
Almanza, 304 Ga. 553, 556, 559 (3) n.6 (820 SE2d 1) (2018)).
Applying these principles, because OCGA § 24-1-103 (a) (2)4 is
specifically patterned after Federal Rule of Evidence 103 (b), and the
Eleventh Circuit interprets that provision, based on the Advisory
Committee Notes, as requiring a contemporaneous objection when a
ruled-upon motion in limine regarding the admissibility of evidence
is allegedly violated at trial, it is clear that the adoption of OCGA §
24-1-103 (a) (2) abrogated the contrary holding announced in Reno
4 This statute provides, in pertinent part, that “[o]nce the court makes a
definitive ruling on the record admitting or excluding any evidence, either at
or before trial, a party need not renew an objection or offer of proof to preserve
such claim of error for appeal.”
13
that no contemporaneous objection is required to preserve the
alleged error when a party violates such a ruled-upon motion in
limine. 5
Although OCGA § 24-1-103 (a) (2) applies only to evidence, 6 we
see no reason why this rationale should not equally apply to
statements made by counsel during opening statements and closing
argument. As an initial matter, closing argument must be based on
the evidence presented at trial. See OCGA § 9-10-185 (in civil cases,
“[w]here counsel in the hearing of the jury make statements of
prejudicial matters which are not in evidence, it is the duty of the
court to interpose and prevent the same.”); OCGA § 17-8-75 (same
5 To the extent subsequent cases followed Reno for this proposition with
respect to evidentiary errors, they have likewise been abrogated, including
CSX Transp., Inc. v. Smith, 289 Ga. 903, 907 (2) (717 SE2d 209) (2011); Lewis
v. State, 279 Ga. 69, 73 (5) n.17 (608 SE2d 602) (2005); Rouse v. State, 290 Ga.
App. 740, 742 (1) (660 SE2d 476) (2008); Pruette v. Ungarino, 326 Ga. App. 584,
587 (2) (757 SE2d 199) (2014); Herring v. State, 288 Ga. App. 169, 173 (2) (a)
(653 SE2d 494) (2007); Scott v. Chapman, 203 Ga. App. 58, 59 (1) (416 SE2d
111) (1992); and Seay v. Urban Medical Hospital, Inc., 172 Ga. App. 344, 346
(3) (323 SE2d 190) (1984).
6 See Gates v. State, 298 Ga. 324, 328 (4) (781 SE2d 772) (2016)
(“Georgia’s new Evidence Code, specifically OCGA § 24-1-103, deals with
rulings which admit or exclude evidence, and it is well settled that closing
arguments do not amount to evidence.” (citation and punctuation omitted)).
14
in criminal cases). And requiring a contemporaneous objection to an
alleged violation of a motion in limine during closing argument
would further the purpose of the contemporaneous objection rule –
to afford an opportunity for the trial court to remediate error at the
time it is made. See Weldon, 297 Ga. at 541.
We also note that the United States Court of Appeals for the
Eleventh Circuit and other federal appellate courts, even without
relying on Federal Rule of Evidence 103, likewise require a
contemporaneous objection to argument that allegedly violates a
motion in limine ruling. See, e.g., Cephus v. CSX Transp., Inc., 771
F. App’x 883, 895 (II) (B) (iii) (11th Cir. 2019) (although plaintiff’s
closing argument arguably violated the district court’s order on a
motion in limine, defendant did not make a contemporaneous
objection during closing argument and thus failed to give the district
court an opportunity to sustain the objection and provide a curative
instruction); Thorncreek Apartments III, LLC v. Mick, 886 F3d 626,
635 (II) (B) (1) (7th Cir. 2018) (although a definitive ruling in limine
ordinarily preserves an issue for appellate review without the need
15
for further objection, opposing party was required to make a
contemporaneous objection to an alleged violation of the motion in
limine during closing argument); Settlegoode v. Portland Public
Schools, 371 F3d 503, 517 (9th Cir. 2004) (failure to make a
contemporaneous objection to an alleged violation of a motion in
limine during closing argument precludes ordinary appellate
review). And as other state courts have persuasively observed, “[t]o
hold otherwise would adopt a rule that violates principles of judicial
economy by permitting counsel to sit silently when an error is
committed at trial with the hope that they will get a new trial
because of that error if they lose.” BMW of North America v. Roth,
252 P3d 649, 661 (III) (B) (3) (Nev. 2011) (cleaned up) (granted
motion in limine does not serve as an objection for purposes of
preserving a future appeal for subsequent alleged violations of the
order, including attorney misconduct in opening statement).7
7 See also Givens v. Anderson Columbia Co., Inc., 608 SW3d 65, 79 (D)
(Tex. App. 2020) (violation of a limine order does not preserve error for
appellate review absent further objection); Miller v. Allman, 813 SE2d 91, 107
(III) (D) (W. Va. 2018) (pretermitting whether counsel’s closing argument
16
We conclude that a contemporaneous objection must be made
at the time an alleged violation of a ruled-upon motion in limine
occurs at trial – whether during the presentation of evidence or in
opening statements or arguments made by counsel before the
factfinder – in order to preserve the error for appeal. 8 Although the
defendants argue that this contemporaneous objection requirement
will serve only to further highlight prejudicial evidence or argument
in the presence of the jury, we disagree. When a ruled-upon motion
in limine is allegedly violated at trial, the opposing party objects and
the trial court agrees that the motion in limine has been violated,
the court is in a position to take remedial action, including providing
violated motion in limine ruling, opposing party did not preserve the issue for
appellate review by timely objecting to the argument at trial); People v.
Dinapoli, 369 P3d 680, 684 (III) (B) (Colo. App. 2015) (“We perceive no reason
why the same preservation rules should not also apply to issues of
prosecutorial comment or argument that have been raised and ruled on before
trial.”); Alfa Mut. Ins. Co. v. Moreland, 589 S2d 169, 171 (Ala. 1991) (even when
counsel’s improper closing argument violated motion in limine ruling,
generally no sufficient ground exists for a new trial without a timely objection
and a ruling by the trial court or a refusal by the trial court to make a ruling).
8 For this reason, we overrule those Court of Appeals cases that have
held otherwise, including Hernandez, 291 Ga. App. at 565 (1) n.3; Moseley, 213
Ga. App. at 878 (1); and Bentley v. BMW, Inc., 209 Ga. App. 526, 527 (1) (433
SE2d 719) (1993).
17
curative instructions to the jury and admonishing counsel for the
violation if necessary. See, e.g., Lynn v. State, 310 Ga. 608, 612 (3)
(852 SE2d 843) (2020) (“[T]he trial court’s prompt curative
instruction negated any prejudice by telling the jury to disregard the
reference, an instruction that we presume the jury followed.”). This
approach is preferable and far more efficient than the alternative,
in which the aggrieved party can sit back and make no objection in
the hope of either a successful verdict or, in the event of a loss,
persuading the trial court or the appellate court to reverse much
later in a motion for new trial or on appeal.
(b) OCGA § 9-10-185 and Stolte v. Fagan.
The defendants argue that, notwithstanding the adoption of
Rule 103, under OCGA § 9-10-185 and Stolte v. Fagan, 291 Ga. 477(731 SE2d 653) (2012), the ruled-upon motion in limine should have
been considered an “objection made” such that no contemporaneous
objection was required at the time of Williams’s improper closing
argument. We disagree.
OCGA § 9-10-185 provides:
18
Where counsel in the hearing of the jury make statements
of prejudicial matters which are not in evidence, it is the
duty of the court to interpose and prevent the same. On
objection made, the court shall also rebuke counsel and by
all needful and proper instructions to the jury endeavor
to remove the improper impression from their minds. In
its discretion, the court may order a mistrial if the
plaintiff’s attorney is the offender.
(Emphasis added.) OCGA § 9-10-185 was first codified in 1895,9 and
we have consistently interpreted and applied the “objection made”
requirement as a contemporaneous objection to the alleged
prejudicial statements. See Stolte, 291 Ga. at 482 (2) (b) (“The proper
time to object to improper argument is when it occurs.”) (citation and
punctuation omitted); Wright v. Wright, 222 Ga. 777, 781 (4) (152
SE2d 353) (1966) (“When improper argument is made to the jury by
an attorney for one of the parties, it is necessary, in order to make
the same a basis for review, that opposing counsel, during the trial,
properly object to such argument or invoke some ruling or
instruction with reference thereto by the court.”) (citation and
9 See Civil Code 1895, § 4419. We note that the language of this statute
is virtually identical to its criminal counterpart. See OCGA § 17-8-75. These
Georgia statutes have no equivalent in the Federal Rules of Evidence.
19
punctuation omitted; emphasis added); Ehrlich v. Mills, 203 Ga.
600, 601 (4) (48 SE2d 107) (1948) (“When improper argument to the
jury is made by an attorney for one of the parties, it is necessary, in
order to make the same a basis for review, that opposing counsel
should make objection to such argument or invoke some ruling or
instruction with reference thereto by the court.” (citations omitted)).
The reason for requiring a contemporaneous objection under OCGA
§ 9-10-185 is the same as in other contexts: “A party [cannot] during
the trial ignore what he thinks to be an injustice, take his chance on
a favorable verdict, and complain later.” Wright, 222 Ga. at 781 (4)
(citation and punctuation omitted). The defendants cite no case in
which a pretrial motion in limine has been considered an “objection
made” under OCGA § 9-10-185, and we decline to extend the
meaning of that term here.
Relying on Stolte, the defendants assert that even if a timely
objection was required to preserve the error for ordinary appellate
review, appellate courts may still consider “whether the improper
argument in reasonable probability changed the result of the trial.”
20
291 Ga. at 483 (2) (b) (citation and punctuation omitted). However,
in Stolte, we expressly questioned the validity of such review in civil
cases because we had already determined that this type of review
does not apply in non-death penalty criminal cases. See id. at 483(2) (b) n.4. Several years after Stolte, we reiterated that in non-death
penalty criminal cases, there is no appellate review available, even
for plain error, 10 when defense counsel fails to make a
contemporaneous objection to a prosecutor’s closing argument. See
Gates v. State, 298 Ga. 324, 328-29 (4) (781 SE2d 772) (2016).
The issue of whether appellate review is available in civil cases
to review a claim of allegedly improper argument in the absence of
a contemporaneous objection is now squarely before us. We hold that
there is no reason to review unpreserved claims of error in closing
argument in civil cases and therefore overrule Stolte and other cases
10To establish plain error, the defendant “must point to an error that
was not affirmatively waived, the error must have been clear and not open to
reasonable dispute, the error must have affected his substantial rights, and
the error must have seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Lopez v. State, 310 Ga. 529, 555 (7) (852
SE2d 547) (2020) (citation omitted).
21
holding that such appellate review is available. Stare decisis
considerations do not require a different conclusion. Under that
doctrine, “courts generally stand by their prior decisions, because
doing so promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of
the judicial process.” Henderson v. State, 310 Ga. 231, 241 (3) (a)
(850 SE2d 152) (2020) (citations and punctuation omitted).
However, “stare decisis is not an inexorable command.” Pounds v.
State, 309 Ga. 376, 382 (3) (846 SE2d 48) (2020) (citation and
punctuation omitted). “As we consider whether an earlier decision
ought to be reexamined, we consider a number of factors, including
the age of the precedent, the reliance interests involved, the
workability of the prior decision, and most importantly, the
soundness of its reasoning.” Id. (citation and punctuation omitted).
In doing so, “we must balance the importance of having the
questions decided against the importance of having it decided right.”
Henderson, 310 Ga. at 241 (3) (a) (citation and punctuation omitted).
22
We begin by addressing the origin of appellate review of
unpreserved errors, which began with criminal appeals in death
penalty cases. In Conner v. State, 251 Ga. 113 (303 SE2d 266) (1983),
this Court analyzed statements made by the prosecutor during
closing argument in a death penalty case, without objection, to
determine whether the prosecutor’s “‘dramatic appeal to gut
emotion’” violated the Eighth Amendment or OCGA § 17-10-35 (c)
(1).11 Conner, 251 Ga. at 118 (5) (quoting Hance v. Zant, 696 F2d 940,
952-53 (VII) (11th Cir. 1983)). The Court concluded that the
“‘passion’ proscribed by [OCGA § 17-10-35 (c) (1)] does not
encompass all emotion, but only that engendered by prejudice,
particularly racial prejudice, or other arbitrary factors[,]” and that
the statement likewise did not violate the substantive and
procedural protections of the Eighth Amendment. Id. at 121 (5)
(footnote omitted) (disagreeing with Hance to the extent Hance holds
11 This statute provides that, in reviewing a case in which the death
penalty has been imposed, this Court “shall determine . . . [w]hether the
sentence was imposed under the influence of passion, prejudice, or any other
arbitrary factor.”
23
that the death penalty may not be based in part on an emotional
response to factors that “implicate valid penological justifications for
the imposition of the death penalty”). Two years later, this Court
again addressed a claim that the prosecutor had argued improperly
without objection in a death penalty case, and this time we
announced that where the prosecutor argues improperly and no
objection is interposed, “whether reversal is required depends upon
an evaluation of prejudice that is undertaken in an essentially
identical manner whether the improper arguments are considered
directly or in the context of an ineffectiveness claim.” Ford v. State,
255 Ga. 81, 90 (8) (i) (335 SE2d 567) (1985). Thus, we explained, the
undertaking requires a determination of whether any portion of the
prosecutor’s argument was improper and, if so, whether the
improper argument was so egregious as to require a new trial. See
id. See also Tharpe v. State, 262 Ga. 110, 114 (16) (416 SE2d 78)
(1992) (In a death penalty case, “[w]hen no timely objection is
interposed, the test for reversible error is not simply whether or not
the argument is objectionable, or even if it might have contributed
24
to the verdict; the test is whether the improper argument in
reasonable probability changed the result of the trial.”) (citation
omitted).
In 2001, this Court applied this standard for the first time to
an unobjected-to improper closing argument made in a civil case.
See Mullins v. Thompson, 274 Ga. 366, 367 (2) (553 SE2d 154) (2001)
(“The time to object to improper closing argument is when the
impropriety occurs at trial. When, as here, no timely objection is
interposed, the test for reversible error is whether the improper
argument in reasonable probability changed the result of the trial.”
(citations and punctuation omitted)). In doing so, we cited only
Benton v. Chatham County, 206 Ga. App. 285, 288 (3) (425 SE2d
317) (1992), which had quoted and summarily applied Tharpe
without any analysis as to whether that death penalty case’s holding
should apply in a civil condemnation case. See Benton, 206 Ga. App.
at 288 (3). Since that time, this Court has applied this standard in
civil cases only twice and never with any analysis as to whether it
should be applied in civil cases. See Moxley v. Moxley, 281 Ga. 326,
25
328 (6) (638 SE2d 284) (2006) (“The test for reversible error under
those circumstances is whether there is a reasonable probability the
improper argument changed the result of the trial.”); Stolte, 291 Ga.
at 483 (2) (b). And as noted above, in Stolte, we expressly questioned
“the continued validity of the rationale for reviewing the merits of
untimely objections to closing arguments in civil cases, when we do
not conduct such a review in non-death penalty criminal cases.” 291
Ga. at 483 (2) (b) n.4.
In sum, it appears that 20 years ago, this Court extended a
principle of review from death penalty cases, which had statutory
and constitutional roots, to civil cases, without any analysis or
explanation. See Mullins, 274 Ga. at 367 (2). The significant
unsoundness of this reasoning, which is the most important factor
in our stare decisis consideration, cuts heavily in favor of overruling
Stolte, Moxley, and Mullins. See Olevik v. State, 302 Ga. 228, 244 (2)
(c) (iii) (806 SE2d 505) (2017) (noting lack of analysis and summary
conclusion supported overruling cases); Southall v. State, 300 Ga.
462, 467 (1) (796 SE2d 261) (2017) (noting cursory analysis produced
26
unsound and inconsistent interpretation); State v. Hudson, 293 Ga.
656, 661 (748 SE2d 910) (2013) (overruling holding that contained
no analysis). And although the holding announced in Mullins and
followed in Moxley and Stolte may be “workable,” the issue here is
one “of appellate procedure, not contract, property, or other
substantive rights in which anyone has a significant reliance
interest.” Pounds, 309 Ga. at 382 (3) (citation and punctuation
omitted). Overruling these cases will course-correct an important
aspect of appellate procedure by not affording, without a statutory
or constitutional basis, civil litigants greater rights to appellate
review than criminal defendants in non-death penalty cases.
Finally, these holdings are “‘neither ancient nor entrenched’” within
our judicial system. Southall, 300 Ga. at 468 (1) (overruling 44 year-
old precedent and explaining, “without more, that we have been
wrong for many years is no reason to persist in the error” (citation
and punctuation omitted)). See also Woodard v. State, 296 Ga. 803,
808-14 (771 SE2d 362) (2015) (overruling 24-year-old interpretation
of justification defense statute); Jackson v. State, 287 Ga. 646, 659-
27
60 (5)-(6) (697 SE2d 757) (2010) (overruling nearly 29-year-old
interpretation of felony murder statute). Mullins is only 20 years
old, and the erroneous portion of Mullins has been followed by this
Court only twice, with the most recent case flagging its likely
infirmity. Accordingly, we hereby overrule Mullins and its progeny
to the extent that they permit appellate courts to consider error
based on unobjected-to argument at trial in civil cases.12
2. Having determined that a contemporaneous objection is
required when the moving party believes a motion in limine has
been violated during argument, we now turn to the application of
this requirement to the particular facts of this case. The defendants
argue that any application of the contemporaneous objection rule in
this context should be prospective because it is a substantive change
in the law. We need not decide this issue, however, because we
12 To the extent the Court of Appeals has relied on these erroneous
holdings, those cases are likewise overruled, including Auto-Owners Ins. Co. v.
Dolan, 342 Ga. App. 179, 184-85 (5) (803 SE2d 104) (2017); Holloway v. Kroger
Co., 335 Ga. App. 705, 706 (1) (a) (782 SE2d 805) (2016); Young v. Griffin, 329
Ga. App. 413, 415 (2) (765 SE2d 625) (2014); Hamilton v. Shumpert, 299 Ga.
App. 137, 144 (3) (682 SE2d 159) (2009); and Benton, 206 Ga. App. at 288-89
(3).
28
conclude that even before our holding today, the defendants would
have been required to make a contemporaneous objection to
Williams’s statement during closing argument.
We begin by noting that a motion in limine to exclude evidence
“should be granted only if there is no circumstance under which the
evidence is likely to be admissible at trial.” Lewis v. State, 306 Ga.
455, 461 (2) (a) (831 SE2d 771) (2019) (citation and punctuation
omitted). Thus, “the grant of a motion in limine excluding evidence
is a judicial power which must be exercised with great care.” Id.(citation and punctuation omitted). For these reasons, we have
explained that a motion in limine and ruling thereon must be
narrowly tailored to the evidence and law applicable to each case:
Although a party does not waive an error by failing to
object to admission of evidence after a motion in limine is
denied, this rule cannot be invoked to preserve a different,
if perhaps related, error. To allow such a procedure would
deprive the trial court of the opportunity to consider the
error alleged, and take corrective action, if necessary.
Battles v. State, 290 Ga. 226, 232 (5) (719 SE2d 423) (2011) (citations
omitted). We are mindful that trial courts are in the best position to
29
determine whether a particular matter violates a motion in limine,
whether the violation is unduly prejudicial, and what remedy is
appropriate. See, e.g., Harvey v. State, 296 Ga. 823, 834 (2) (c) (770
SE2d 840) (2015) (“[T]he trial court was able to evaluate the tone,
demeanor, and credibility of defense counsel, . . . something we
cannot do from the cold record on appeal . . . .”). Thus, we review a
trial court’s determination of whether a ruled-upon motion in limine
has been violated only for an abuse of discretion. See Hawkins v.
State, 304 Ga. 299, 303-04 (4) (818 SE2d 513) (2018); Forsyth County
v. Martin, 279 Ga. 215, 221 (3) (610 SE2d 512) (2005).
With these principles in mind, we conclude that the motion in
limine at issue on certiorari – seeking to exclude “any statements,
arguments, or evidence offered predominantly to overly inflame the
emotions of the jury or to illicit excessive or undue sympathy,
hostility, or prejudice for or against either party” – was so vague and
overly broad as to render it virtually meaningless as a vehicle to
30
decide an issue before it was raised in context at trial. 13 Cf. Higuera-
Hernandez v. State, 289 Ga. 553, 554-55 (2) (714 SE2d 236) (2011)
(although defendant filed a general motion in limine, he failed to
raise a specific objection to his cellmate’s testimony until after the
testimony was complete, and therefore failed to properly preserve
the claim for appellate review); Arnold v. State, 249 Ga. App. 156,
160-61 (3) (545 SE2d 312) (2001) (where trial court’s ruling on
motion in limine limited State to presenting evidence that defendant
was arrested on an outstanding warrant without identifying the
specific offenses or the fact that he was arrested on a probation
warrant, no abuse of discretion in finding that officer’s testimony
regarding a “felony outstanding warrant” did not require a mistrial).
See also Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 557 (2) (a)
13 We note that, under Federal Rule of Evidence 103 (b), when counsel is
unsure whether a ruling on a motion in limine is sufficiently definite, the rule
“imposes the obligation on counsel to clarify whether an in limine or other
evidentiary ruling is definitive when there is doubt on that point.” United
States v. Wilson, 788 F3d 1298, 1313 (II) (A) (11th Cir. 2015) (citing Advisory
Committee’s Notes to Federal Rule of Evidence 103 (b)). In the future, counsel
would be well advised to likewise apply this principle to motions in limine
related to evidence and argument.
31
(521 SE2d 619) (1999) (trial court properly denied motion in limine
where motion was overly broad and not tailored to a legitimate
objection); Charles W. Gamble, The Motion In Limine: A Pretrial
Procedure That Has Come of Age, 33 Ala. L. Rev. 1, 10-11 (1981)
(“Most critics agree that [a motion in limine’s] scope should be more
like that of a rifle than a shotgun, pointing out the objectionable
material and showing why the material is inadmissible and
prejudicial.” (citation and punctuation omitted)). Accordingly, we
discern no abuse of discretion in the trial court’s determination that
Williams’s statement during closing argument was not a violation of
the court’s ruling on the defendants’ motion in limine. See Harvey,
296 Ga. at 834-35 (2) (c) (trial court, which is in the best position to
observe the way in which argument was made to the jury, as well as
the jury’s reaction, has discretion to decide whether litigation
conduct violates a ruling on a motion in limine). Cf. Pruette v.
Ungarino, 326 Ga. App. 584, 591-92 (3) (757 SE2d 199) (2014) (trial
court did not err in granting doctor’s motion for new trial because
plaintiff’s expert pulmonologist impermissibly referenced doctrine of
32
informed consent in violation of motion in limine order prohibiting
any testimony regarding informed consent).
Judgment reversed. All the Justices concur, except Peterson, J.,
disqualified.
33
BETHEL, Justice, concurring.
I concur with the Court’s well-reasoned opinion. I write
separately to address the nature of the underlying motion in limine
and to urge the cessation of a seemingly common practice in civil
litigation – that is, the filing of generalized, vague, and overly broad
motions in limine.
Here, we are considering a motion in limine that sought to
preclude “any statements, arguments, or evidence offered
predominantly to overly inflame the emotions of the jury or to illicit
excessive or undue sympathy, hostility, or prejudice for or against
either party.” Indeed, while some of the 40 items in the defendants’
omnibus motion in limine discussed specific expected evidence and
argument, others were vague and simply restated basic law, such as
item number 33 (the subject of this Court’s opinion). This particular
motion requested that the trial court generally exclude any evidence
or arguments offered solely to prejudice the parties or that unduly
inflamed the passions of the jury, without pointing the trial court to
any specifically prejudicial evidence or argument. Thus, the motion
34
is simply an extended recitation of the trial court’s authority. 14 But
the defendants pointed to no specific expected evidence or argument
connected to the case before the trial court that they sought to limit.
As the trial court noted in addressing this item in the omnibus
motion, in order for it to exclude or limit testimony or evidence on a
Rule 403 basis, “some particularly proffered testimony or . . .
evidence with some context” must be offered. Thus, the import of the
motion is unclear. It certainly does not provide the intended benefits
of motions in limine. Motions in limine exist to help narrow and
define the questions that will be presented at trial and to assist the
trial court and counsel in preparation for and execution of the trial.
Further, motions in limine can be useful in avoiding even the
passing mention in front of the jury of improper or inadmissible
matters that are particularly prejudicial. A motion in limine that
essentially asks the trial court to follow the law does not accomplish
14 For example, the Georgia Evidence Code already instructs trial courts
on how to handle evidence when its probative value is substantially
outweighed by its tendency to produce passion or prejudice. See OCGA § 24-4-
403 (“Rule 403”).
35
any of those ends.
Broad boilerplate motions like the one we consider here are
often filed as a matter of course in civil litigation across Georgia and
elsewhere, possibly extracted from a folder or brief bank containing
similar motions without much consideration for their particular
necessity or purpose in the case at bar.15 Indeed, a review of the
other motions in limine filed by both the defendants and plaintiff in
this case reveals that this motion was not the only one of this kind
filed in this action. Litigators are frequently creatures of habit, and
many, knowingly or not, appear to live by the precept that what has
been previously filed must always be filed. Clearly, the better
practice is to file motions in limine that are tailored to the specific
issues pending in a given case, such that a trial can proceed
efficiently and undue prejudice can be avoided. When a boilerplate
motion in limine cannot arguably serve those goals, lawyers should
not file it and trial courts should reject it.
15Of course, prior to our holding today, such a motion at least created a
chance of a second bite at the apple in the event the movant failed to lodge a
contemporaneous objection.
36