                           FIRST DIVISION
                            PHIPPS, C. J.,
                   ELLINGTON, P. J., and MCMILLIAN, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                      July 24, 2014




In the Court of Appeals of Georgia
 A14A1083. WOMACK et al v. JOHNSON.

      ELLINGTON, Presiding Judge.

      Michael Womack and Geston Womack brought this action in the Superior

Court of Polk County against Wendi Spain Johnson, as administratrix of the estate

of Jerry Floyd Spain to collect an alleged debt arising from the Womacks’ and

Spain’s joint farming operation. A jury found in favor of Spain’s estate, and the

Womacks appeal, contending that the trial court erred in denying their motion for a

mistrial, which was based on allegedly improper conduct by Spain’s counsel during

his opening statement. For the following reasons, we affirm.
      During his opening statement, Johnson’s counsel showed the jury photographs

of Spain and his infant son.1 Johnson’s counsel blocked the photographs from the

view of the Womacks’ counsel, who could hear the argument being made but could

not actually see the photographs as they were being displayed. It is undisputed that

these photographs were not listed in the pretrial order and that Johnson had not shown

them to either the Womacks or the Court before using them during the opening

statement.

      On the second day of trial, the Womacks moved for a mistrial. The Womacks

argued that the photographs were improper because they were not listed in the pretrial

order and because they were inherently prejudicial. The record shows the Womacks

argued that the photographs caused the jury to think, “oh, that poor baby, he’ll never

see his father.” The Womacks argued that, after Johnson’s counsel displayed the

photographs, they were now “fighting a baby” rather than litigating the merits of their

claim. Johnson responded that using the photographs and discussing the child during

his opening statement was proper because the child is a real party in interest, and a


      1
        While Spain’s child is not a named party to the case, the parties and the
child’s guardian agreed that Johnson, as the administratrix of the decedent’s estate,
was fully representing the child’s interests as the estate’s sole beneficiary, and the
child would be bound by any resulting judgment in this action.

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jury is entitled to know who has an interest in the matter before them. The trial court

denied the Womacks’ motion for a mistrial. The trial court, however, instructed

Johnson’s counsel not to use the photographs or refer to the child for the remainder

of the trial, including during closing arguments.

      1. The Womacks contend the trial court abused its discretion in denying their

motion for a mistrial. Johnson argues, however, that the Womacks waived any error

by failing to make a contemporaneous objection to the use of the photographs of

Spain and his child. We agree with Johnson.

      Pursuant to OCGA § 9-10-185, a trial court may order a mistrial based on

improper and prejudicial statements made in the presence of the jury.2 An appellate

court will not review the discretion of the trial judge in failing to order a mistrial for

an alleged improper argument of counsel when no objection was made by opposing

counsel. Wright v. Wright, 222 Ga. 777, 781 (4) (152 SE2d 363) (1966) (holding it


      2

    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.
OCGA. § 9-10-185.

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necessary for counsel to object to an improper argument to make the same a basis for

review); see Counts v. Moorehead, 232 Ga. 220, 221 (2) (206 SE2d 40) (1974)

(“[T]he trial court in a civil case may, upon the motion of either party, grant a mistrial

for improper remarks of counsel.”). “[I]n order to preserve a point of error for the

consideration of an appellate court, counsel must take exception to the alleged error

at the earliest possible opportunity in the progress of the case by a proper objection

made a part of the record.” (Emphasis added.) Sharpe v. Dept. of Transp., 267 Ga.

267 (1) (476 SE2d 722) (1996). Here, the Womacks did not object on the record at

the earliest possible moment – during the opening statement when Johnson’s counsel

made reference to Spain’s child.3

      When a party fails to assert a contemporaneous objection to allegedly improper

remarks of counsel, the party “waive[s] his right to complain about the remarks on

appeal.” Brooks v. State, 284 Ga. App. 762, 763-764 (644 SE2d 891) (2007). Thus,

when a party waits until the conclusion of the opposing party’s argument to object or

move for a mistrial, any error is not preserved for appellate review. LN West Paces

Ferry Assocs. v. McDonald, 306 Ga. App. 641, 649 (2) (b) (703 SE2d 85) (2010)

      3
        In fact, the trial court transcript shows the Womacks acknowledged they were
making a late objection, saying, “I expect that they’re [Johnson’s counsel] going to
take the position, well, you know, you failed to object and you waived it.”

                                            4
(The defendant waived argument on appeal by waiting until the morning after

opening statements concluded to move for a mistrial based on statements made in

opposing counsel’s opening statement); Brooks v. State, 284 Ga. App. 762, 763-764

(644 SE2d 891) (2007) (The defendant waived his right to object to remarks made in

the prosecution’s opening statement by waiting until the conclusion of the

prosecution’s statement to object.); Felts v. State, 256 Ga. App. 733, 734 (1) (569

SE2d 633) (2002) (The defendant could not appeal trial court’s denial of his motion

for mistrial made at the conclusion of the prosecution’s opening statement because

the objection was untimely and waived.); Booker v. Older Americans Council of

Middle Georgia, Inc., 278 Ga. App. 407, 408-409 (1) (629 SE2d 69) (2006) (Bringing

the trial court’s attention to an improper argument after the argument was made, in

the course of a bench conference, did not suffice to preserve an error for appeal.).

      Based on the foregoing authorities, the record shows that, because the

Womacks objected and moved for a mistrial the morning following opening

statements, and not at the time Johnson’s counsel showed the photographs to the jury,

they failed to properly preserve the error for appeal.

       The Womacks argued, however, this Court should grant a limited exception

to the contemporaneous objection requirement where a party’s conduct prevents the

                                          5
other side from making a timely objection, as they contend occurred in this case. This

argument proves unpersuasive in this case. While the Womacks may not have been

able to see the photographs because of how Johnson’s counsel chose to present them

to the jury, Womacks’ counsel could hear the argument accompanying the

photographs. More importantly, the Womacks’ main concern, as presented by the

record before this Court, was not the specific content of these photographs, but rather

the identity of the person depicted, which informed the jury that the sole beneficiary

of Spain’s estate was a young child. Thus, the Womacks did not need to see the

photographs to contemporaneously object to Johnson’s opening statement remarks

concerning the child. Additionally, the Womacks could have objected timely on the

ground that photographs not listed in the pretrial order were being shown to the jury.

Failing to object contemporaneously, the objections were waived. See Sharpe v. Dept.

of Transp., 267 Ga. at 267 (1).

      2. Johnson’s request for sanctions for frivolous appeal pursuant to Court of

Appeals Rule 15 is denied.

      Judgment affirmed. Phipps, C. J., and McMillian, J., concur.




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