Urban Medical Hospital, Inc. v. Seay , 179 Ga. App. 874 ( 1986 )

Deen, Presiding Judge.

Urban Medical Hospital, Inc. filed an application for an appeal in this court after sanctions were imposed against its attorney for an improper remark made during the retrial of this case. (The first trial resulted in a verdict for the hospital and was overturned on appeal. Seay v. Urban Medical Hosp., 172 Ga. App. 344 (323 SE2d 190) (1984).) The case was retried on May 1, 1985, before Judge A. Harris Adams, State Court of Cobb County judge who was sitting by designation as a superior court judge. Prior to trial, counsel for the plaintiff made a motion in limine. One of the issues discussed was the extent of any reference to the prior trial since a thorough and sifting cross-examination could necessitate the uses of the transcript for impeachment purposes. During the ensuing discussion on the motion, Lynn Downey, counsel for the defendant, bitterly expressed his displeasure with this court’s ruling in the prior case several times. The trial judge held that he had previously ruled that there could be no inferences as to the disposition of the prior case and that he would not tolerate any bantering back and forth or any attempt to submit clearly inadmissible evidence.

At one point in the trial, while the court was ruling on a pending evidentiary matter, plaintiff’s counsel moved for a mistrial and the jury was removed from the courtroom. Counsel claimed that he was standing near the jury box and heard Downey make an improper remark as to the outcome of the prior trial while the judge was speaking, and that he was sure the jury overheard it. The trial judge stated that he did not hear the remark because he was making his ruling, and the court reporter stated she did not hear it because she was taking down the judge’s ruling. Plaintiff’s counsel stated that he overheard Downey say, “I wish I had that old trial back, I did pretty well in that,” and claimed that Downey was trying to get objectionable material in through the side door, and that the statement was knowingly and intentionally made to prejudice the jury. The trial judge deferred ruling on the motion and decided against giving any curative instructions to the jury because he was afraid they might accentuate the comment. The next day, the court granted the motion for a mistrial. Counsel for the plaintiff then moved for costs, attorney fees, and costs of preparation of a transcript, and moved to disqualify Downey and his firm from the case. The court denied the motion on the basis that it was not a written motion and placed upon the calendar for a hearing.

Plaintiff then filed a written motion seeking sanctions against the defendant as stated above, as well as expenses incurred by witnesses in attending the trial. A hearing was conducted by Judge Cauthorn, who entered a written order reviewing the trial of the prior case, the ensuing appeal, and the facts surrounding the grant of a mistrial at the retrial. The court held it was “left without a roadmap” and “must fall back on OCGA § 15-1-3 as the source of its authority to deal with the intentional act of Lynn A. Downey” and found that the court did have the authority to grant the relief prayed for by the plaintiff. The court found that the plaintiff had abandoned its contempt motion and that most of the relief prayed for in the motion for sanctions was appropriate. Downey and his firm were barred from representing the defendant in the case, but it declined to assess attorney fees, costs, transcript costs, and witness expenses against the defendant because the defendant in no way participated in or approved of Downey’s action. Instead, these expenses were assessed against Downey personally. Upon submission of an affidavit by Downey’s law firm stipulating that Downey would not benefit financially from the firm’s representing the defendant, the court entered an order authorizing the firm to proceed with its representation of Urban Medical Hospital. The defendant hospital now asserts as error the trial court’s ruling in disqualifying Downey as its counsel and the award of attorney fees, costs, transcript costs, and out-of-town witness expenses against Downey personally. Held:

Under OCGA § 9-10-185, “[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. 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 for improper remarks of counsel. Counts v. Moorehead, 232 Ga. 220 (206 SE2d 40) (1974). Some improper statements, however, may be so prejudicial that no instruction from the trial court can eradicate their effect from the jurors’ minds. Georgia Power Co. v. Puckett, 181 Ga. 386 (182 SE 384) (1935). In ruling on matters contemplated by the above-quoted code section, the trial court is vested with a broad discretion, and its ruling will not be disturbed unless this discretion was manifestly abused. McCluskey v. American Oil Co., 225 Ga. 63 (165 SE2d 830) (1969).

In the instant case, the trial judge did not hear counsel’s remark because he was making a ruling when it was made. Downey admitted making the remark to the hospital’s representative, seated at the counsel table, but denied that it was intended to be overheard by the jury. While the trial court was correct in observing that it could not give curative instructions without revealing the prejudicial statement and thereby intensifying its effect, we believe that the grant of a mistrial was a manifest abuse of the court’s discretion. The court should have first determined whether the jurors had in fact heard the remark by discreetly inquiring as to whether anyone had heard a remark made by counsel, and then interviewing any juror who gave an affirmative response, out of the presence of the other jurors, to determine exactly what was heard and then determine if the comment was prejudicial. It is possible that nothing at all was heard, or that only a harmless fragment of the statement was overheard, and there would be no need to grant a mistrial.

The trial court’s failure to make a nonintrusive inquiry as to whether the comment was heard by the jury constitutes an abuse of discretion in granting the mistrial. Accordingly, we need not address the issue of the appropriateness of the sanctions imposed on counsel for the defendant.

Judgment reversed.

Banke, C. J., Birdsong, P. J., Sognier and Benham, JJ., concur. McMurray, P. J., Pope and Beasley, JJ., concur in part and dissent in part. Carley, J., disqualified.