                            THIRD DIVISION
                             DOYLE, C. J.,
                     ELLINGTON, P. J., and DILLARD, 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 9, 2015




In the Court of Appeals of Georgia
 A15A0689. PETRENKO v. MOSERI et al.                                           DO-086

      DOYLE, Chief Judge.

      Kelly Petrenko appeals the trial court’s denial of her motion for new trial. She

contends that the trial court erred by (1) allowing the defendant to open and conclude

closing arguments after the defendant had introduced evidence; (2) allowing the

defendant to withdraw its evidence after it had been admitted; (3) not charging the

defendant with evidence that was used in its cross-examination of the plaintiff, but

not formally tendered; and (4) readmitting Defendant’s Exhibit 1 as Plaintiff’s Exhibit

9, over the plaintiff’s objection. For reasons that follow, we affirm.

      Petrenko sued Stephen Moseri for injuries she sustained in an automobile

collision she alleged was caused by Moseri. Moseri’s insurer paid Petrenko $30,000.

Petrenko also had a $100,000 uninsured motorist policy issued by State Farm Mutual
Automobile Insurance Company (“State Farm”), and State Farm elected to proceed

in Moseri’s name in this case.

      The exhibit initially marked as Defendant’s Exhibit 1 was identified during the

videotaped deposition testimony of Petrenko’s treating physician, which was played

for the jury at trial during Petrenko’s case-in-chief. Before the deposition was played,

the trial court conferred with counsel for both parties about the deposition exhibits.

The court stated, “Plaintiff’s [Exhibits] 1 and 2 are admitted without objection, and

Defendant’s [Exhibit] 1 is admitted without objection, correct?” Petrenko’s counsel

responded, “That is correct,” but State Farm’s counsel did not respond. After further

discussion, the court again stated that the same exhibits were admitted without

objection and that the evidence was for the jury’s consideration.

      During the deposition, State Farm’s counsel asked Petrenko’s doctor about

Defendant’s Exhibit 1:

      COUNSEL: After you provided opposing counsel with a medical
      narrative, you received a call from opposing counsel’s office on
      November 1st, 2012, is that right[?]


      DOCTOR: I believe so, yes.




                                           2
COUNSEL: And they basically called to tell you that they had some
areas of concern with the narrative you presented, correct?


DOCTOR: I believe, yeah. It’s been a long time ago.


COUNSEL: Well, that’s what it says in your note, in your office note,
right?


DOCTOR: Can I see that?


COUNSEL: Yes.


DOCTOR: Okay, that was my assistant who took the call, not me. . . .


COUNSEL: Doctor, I’m showing you what’s been marked as
Defendant’s Exhibit No. 1. Is that exhibit a true and accurate copy of a
record of a phone conversation which was kept in the ordinary regular
course of your business here at Resurgens Orthopaedics?


DOCTOR: Yes.


COUNSEL: All right. And it’s your understanding that after you
prepared the narrative, that opposing counsel called your office and
indicated that they had some concerns or questions about the narrative,
correct?


DOCTOR: That’s what my assistant documented.

                                   3
During this testimony, Petrenko’s counsel objected on the grounds of hearsay, best

evidence, and mischaracterization of evidence. The substance of the exhibit states,

“Attorney’s office called and stated that there were some areas of the narrative that

were in question and to please call back to discuss the questions.”

      After the deposition was played, there was further discussion about the

exhibits, and counsel for State Farm stated that he had not tendered Defendant’s

Exhibit 1. State Farm’s counsel conceded that, prior to trial, he had received an email

from Petrenko’s counsel asking if he intended to tender Defendant’s Exhibit 1 to the

doctor’s deposition. If not, Petrenko’s counsel proposed that they delete the portions

of the doctor’s deposition that discussed it. State Farm’s counsel responded that he

did intend to tender that exhibit and that they could deal with any objection

Petrenko’s counsel might have at trial. During trial, however, State Farm’s counsel

stated that his trial strategy had changed and that he did not intend to introduce the

document.1 At that point, the trial court ruled that it would exclude Defendant’s

Exhibit 1, prohibit State Farm from mentioning anything about the exhibit, and allow

State Farm’s counsel to open and conclude closing arguments provided he did not

      1
        State Farm’s trial strategy changed because Moseri ultimately admitted fault
for the accident, thereby eliminating the need to present his testimony and allowing
State Farm to open and conclude closing arguments if it did not present any evidence.

                                          4
tender any other evidence. Petrenko’s counsel stated that he disagreed with the

court’s ruling.

      During State Farm’s closing argument, which was not transcribed, Petrenko’s

counsel objected that State Farm had violated the court’s order by mentioning the

conversation that was memorialized in Defendant’s Exhibit 1. As a solution, counsel

for Petrenko proposed that the court tender the document as a defense exhibit and

allow Petrenko to conclude closing arguments. The judge ruled that

      [s]ince the testimony of the doctor in his deposition mentioned the very
      subject for which we are discussing this area, and since the document,
      Defendant’s Exhibit 1, was part of that discussion, or that testimony, and
      since [the p]laintiff took the deposition of the doctor for preservation of
      testimony and to be played to the jury in lieu of his appearance, I’m
      going to allow the document in. But I’m allowing it in, in part and chief
      of the [p]laintiff’s case. And, therefore, the [d]efendant will have, still,
      the opportunity to open and close, and [the p]laintiff can utilize the
      document to the best of his benefit, or – and the [d]efendant can use it
      to the best of his benefit.


Petrenko’s counsel did not object to the court’s ruling at that point.

      Following closing arguments, the jury awarded Petrenko $12,774. Because the

parties had stipulated prior to trial that any verdict would be reduced by the $30,000

payment made by Moseri’s liability insurer , judgment was entered for Petrenko in

                                           5
the amount of $0. Pursuant to OCGA § 5-5-22, Petrenko filed a motion for new trial

or in the alternative motion to set aside, contending that the trial court improperly

removed Defendant’s Exhibit 1 from evidence and improperly readmitted the

document as Plaintiff’s Exhibit 9, thereby denying her the opportunity to open and

conclude closing arguments. The trial court denied Petrenko’s motion.

      1. Petrenko contends that the trial court erred by permitting State Farm to

withdraw Defendant’s Exhibit 1 after it had been admitted, thereby allowing State

Farm to open and conclude closing argument.

      “In civil actions, where the burden of proof rests with the plaintiff, the plaintiff

is entitled to the opening and concluding arguments except that if the defendant

introduces no evidence or admits a prima-facie case, the defendant shall be entitled

to open and conclude.”2 The record does not show that State Farm ever formally

tendered Defendant’s Exhibit 1 at trial. Initially, it appears that the trial court

assumed, with Petrenko’s concurrence, that all documents identified in the doctor’s

deposition would be admitted and so ruled, outside the presence of the jury. State

Farm, however, never affirmatively offered the exhibit into evidence on its behalf.

And during the deposition, the doctor was shown the exhibit, but did not read from

      2
          OCGA § 9-10-186.

                                           6
it or disclose its contents other than to admit that his assistant had documented a

telephone call from plaintiff’s counsel regarding questions about the medical

narrative he had prepared.3 Accordingly, we conclude that the exhibit was not

“admitted” as a defense exhibit and did not deprive State Farm of the right to open

and conclude closing arguments. We therefore need not address Petrenko’s

contention that State Farm should not have been allowed to withdraw the exhibit.

      2. Petrenko contends that the trial court erred by not requiring State Farm to

tender into evidence an exhibit used in its cross-examination of Petrenko to refresh

her recollection about prior work absences.

      On cross-examination, Petrenko was asked whether she had missed time from

work prior to the automobile collision, and she said “no.” The following then

transpired:

      COUNSEL: All right. Ma’am, do you recall that you actually were
      absent from work, called in sick for whatever reason, on March 28th,



      3
         Cf. Aldridge v. State, 237 Ga. App. 209, 214-215 (6) (515 SE2d 397) (1999)
(presenting documents’ contents to the jury was equivalent of formal tender of
evidence that would divest defendant of the right to open and close final arguments),
construing prior version of OCGA § 17-8-71, which provided in relevant part: “If the
defendant introduces no evidence, his counsel shall open and conclude the argument
to the jury after the evidence on the part of the [S]tate is concluded.”

                                         7
      2011, less than a month before the accident. Then, again, on April 12,
      2011, then again on April 13, 2011. Do you recall that?


      PETRENKO: No, I don’t recall that.


State Farm’s counsel identified Defendant’s Exhibit 24 and showed it to Petrenko to

see if it would refresh her recollection. Petrenko’s counsel objected, arguing that it

was improper to have the witness testify about the exhibit without tendering it. The

trial court allowed Petrenko to look at the document to see if it refreshed her

recollection, and the questioning resumed.

      COUNSEL: Do you recall, ma’am – do you recall, first of all, that you
      called in sick at your job at ER Solutions on March 28th, 2011?


      PETRENKO: I mean, as the record shows, yes, I did, but it was – I was
      –


      COUNSEL: I don’t want to talk about the records, I just want to ask –
      just answer the question, do you recall –


      PETRENKO: Okay, yes.


      COUNSEL: – if you called in sick March 28th, 2011?


      4
          Defendant’s Exhibit 2 is not part of the record on appeal.

                                           8
      PETRENKO: Now – now I do.


      COUNSEL: And now do you also recall that you called in sick on April
      12th, 2011?


      PETRENKO: I – I do.


      COUNSEL: And do you recall that you called in sick on April 13th,
      2011?


      PETRENKO: I do.


      Where, as here, a witness states that she does not remember, the proper use of

a prior statement is to refresh her memory.5 “And documents used to refresh a

witness’s present recollection generally cannot be admitted in evidence” unless they

are otherwise admissible.6

      In support of her argument that Defendant’s Exhibit 2 should have been

admitted into evidence, Petrenko relies on two cases involving the rule applicable

under the prior version of OCGA § 17-8-71, which provided that a criminal defendant

will lose the right to open and close argument to the jury if he introduces evidence.


      5
          See Bischoff v. Payne, 239 Ga. App. 824, 825-826 (1) (522 SE2d 257) (1999).
      6
          Id. at 826.

                                           9
Petrenko relies on these cases because they interpret language similar to the language

of OCGA § 9-10-186 regarding a civil defendant’s right to open and conclude closing

argument if he introduces no evidence. The cases, however, are distinguishable. In

Kennebrew v. State,7 the defense presented to the jury an entire tape-recorded

statement of a co-indictee, which statement the court ruled was the equivalent of a

formal tender of evidence, divesting defendant of the right to open and close final

argument. And in Thompson v. State,8 defense counsel had a witness read his prior

written statement in its entirety to himself and then testify that it did not contain

certain descriptive information, thereby introducing new evidence into the record and

causing defendant to lose the right to open and conclude closing argument. Here, the

exhibit was neither read nor shown to the jury, and Petrenko’s testimony was limited

to a recollection of information contained in the document. The trial court therefore

did not err by not requiring State Farm to tender the exhibit.

      3. Petrenko contends that the trial court erred by readmitting Defendant’s

Exhibit 1 as Plaintiff’s Exhibit 9, over Petrenko’s objection. In fact, Petrenko’s

counsel did not object after the trial court readmitted the document. Although counsel

      7
          267 Ga. 400, 403-404 (4) (480 SE2d 1) (1996).
      8
          265 Ga. App. 696, 697-698 (1) (595 SE2d 377) (2004)

                                         10
had previously stated that he wanted the exhibit attributed to State Farm so that

Petrenko would have the right to open and conclude closing argument, he stated that

he would honor the court’s decision either way , and he did not object after the court

ruled. Under the circumstances, Petrenko waived her right to object on this basis on

appeal.9

        Judgment affirmed. Dillard, J., concurs. Ellington, P. J., concurs in judgment

only.




        9
        See Ahmed v. Clark, 301 Ga. App. 426, 428 (688 SE2d 361) (2009)
(“although a party may have initially objected to an exhibit, that party’s failure to
make a contemporaneous objection at the time the exhibit is re-tendered waives the
objection”) (citation omitted).

                                          11
