                               SECOND DIVISION
                                 MILLER, P. J.,
                            RICKMAN and REESE, JJ.

                    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


                                                                     March 16, 2020




In the Court of Appeals of Georgia
 A19A2217. HARVEY et al. v. WILLIAMS.

      RICKMAN, Judge.

      Oxford Construction Company and Rubin Harvey, Jr. appeal from the final

judgment issued after a jury awarded Johnny L. Williams1 $18 million to compensate

him for injuries sustained in a collision between a dump truck driven by Harvey and

a tractor driven by Williams and from the trial court’s order denying their motion for

new trial. Oxford and Harvey contend that Williams’s closing argument violated

motions in limine granted by the trial court, resulting in prejudice, and that the trial

court erred by not intervening to prevent the prejudicial arguments. Oxford and

Harvey also challenge the award of prejudgment interest included in the final


      1
       Williams has proceeded by and through his conservator, Alfonza Lewis,
throughout this litigation.
judgment, arguing that the award was not authorized under OCGA § 51-12-14. For

reasons that follow, we reverse the damages award and decline to address the

prejudgment interest issue.

      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 around his family and friends. As a result of the traumatic brain injury he

                                          2
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



                                           3
damages would be $3,382,383.15, and with the memory care unit option, the total

would be $2,008,790.15.

      During opening argument, Williams’s counsel informed the jury that they

would be seeking approximately $3.4 million in special damages and $20 million for

pain and suffering. Counsel for Oxford and Harvey informed the jury during opening

argument 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 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. 2 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

      2
       After the jury rendered its verdict, the trial entered a second phase to address
Williams’s claim for attorney fees and expenses under OCGA § 13-6-11, but counsel
dismissed the claim during opening argument.

                                          4
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, 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.

      1. Oxford and Harvey contend that Williams violated the trial court’s ruling in

limine prohibiting arguments offered “predominantly to overly inflame the emotions

of the jury” and the trial court’s ruling on their motion in limine precluding a “golden



                                           5
rule” argument regarding damages, that these violations were prejudicial, and that the

trial court erred in failing to intercede and prevent the prejudicial arguments.

      (a) Oxford and Harvey filed a motion in limine seeking to exclude statements,

contentions, arguments, inferences, or proffer of any evidence to elicit sympathy for

[Williams] or any individual. In its Order on Defendant’s Motion in Limine, the trial

court reserved ruling on this motion, finding it overly broad and vague and instructing

that if, during the trial, “the Defendants believe that potential testimony or evidence

or offered testimony or evidence is inadmissible, overly prejudicial, and/or irrelevant,

the Defendants shall notify this Court, outside the presence of any potential juror,

juror, or seated jury.” The court then stated, “[n]evertheless, 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 is prohibited.” Oxford and Harvey contend that counsel for Williams

violated this ruling in closing argument.

      Williams’s counsel argued, “whatever you award Mr. Williams [he] is going

to be stuck with for the rest of his life. And I hope that your verdict is not a double-

down on sentencing him to a nursing home because if you sentence him to a nursing

home, you’re signing his death warrant.” Counsel continued with, “[l]et’s just face

                                            6
it, we hear all the time about what goes on in a nursing home. I do not in good

conscience believe that you are desiring to do that to Mr. Williams. None of this is

his fault.”

       This argument, which essentially told the jury that awarding damages based on

the cost of nursing home care instead of the more expensive in home care would be

sentencing Williams to death, clearly violated the trial court’s ruling precluding

argument offered predominantly to overly inflame the emotions of the jury.3 Although

Williams argues that the trial court’s ruling required Oxford and Harvey to notify the

court during the trial of any alleged violations, the court’s order limits that

requirement to “potential testimony or evidence or offered testimony or evidence”

and specifically prohibits argument “offered predominantly to overly inflame the

emotions of the jury.” And although there was no contemporaneous objection to this

argument, the trial court’s motion in limine ruling precluded this type of inflammatory

argument, and that ruling was sufficient to preserve this issue for appellate review.

       3
        Further, we cannot conceive of any civil case in which it would be proper for
the jury to be told that its action would result in a party’s death; such is not even
permissible in the first phase of a death penalty trial. See, e.g., Stinski v. State, 286
Ga. 839, 852 (48) (691 SE2d 854) (2010) (court’s charge properly directed jurors in
death penalty case to focus their guilt/innocence phase deliberations solely on the
question of defendant’s possible guilt rather than possibly being distracted by
premature concerns regarding sentencing).

                                           7
See Central of Georgia R. Co. v. Swindle, 260 Ga. 685, 687 (398 SE2d 365) (1990)

(despite lack of contemporaneous objection, closing argument held to be improper

when motion in limine had been granted on the issue raised on appeal).

       In addition to being in violation of the court’s ruling, this highly inflammatory

argument was not supported by the evidence. See F.D. Wilson Trucking Co. v.

Ferneyhough, 269 Ga. App. 736, 737 (1) (605 SE2d 132) (2004) (“Flights of oratory

and false logic do not call for mistrials or rebuke. It is the introduction of facts not in

evidence that requires the application of such remedies.”) (citation and punctuation

omitted); Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994) (there are limits to

the wide range of discussion permitted in closing argument, “the first and foremost

of which is the longstanding prohibition against the injection into the argument of

extrinsic and prejudicial matters which have no basis in the evidence.”) (citation and

punctuation omitted); cf. Seaboard Coast Line R. Co. v. Zeigler, 120 Ga. App. 276,

278 (1) (a) (170 SE2d 60) (1969) (use of figure of speech was not improper when

based on facts established during trial).

       The relevant evidence consisted of testimony from a certified nursing assistant

who cared for Williams and had previously worked in a nursing home. When asked

if Williams would be better off at home with nursing care or in a nursing home, she

                                            8
testified, “I think he’s in a good home and it’s kind of better.” In addition, the life

care planner was asked her opinion about what would be better for Williams and she

testified that she understood that the family wanted “him to reside at home as long as

that is possible.” She also testified that she had identified two facilities with memory

care units that “were well known and well thought of” and that if needed, they would

provide his care and “[h]e would be safe.” The only evidence of any negative impact

that a nursing home would have on Williams came from his pastor who testified, “it

would crush him to leave his home environment.” That opinion is not sufficient to

support counsel’s argument that sending him to a nursing home would be the

equivalent of sentencing him to death.

      The violation of the motion in limine alone is not sufficient to establish

reversible error; the violation must be harmful. See CSX Transp. v. Monhollen, 229

Ga. App. 516, 516 (1) (494 SE2d 202) (1997). In this case, the only issue for the jury

was the amount of damages to award Williams and we cannot say that the improper

argument about the potential danger to Williams of awarding a lesser amount did not

influence the jury’s verdict. Accordingly, we reverse the damages award. See Gen.

Motors Corp. v. Moseley, 213 Ga. App. 875, 878 (1) (447 SE2d 302) (1994),

overruled on other grounds, Webster v. Boyett, 269 Ga. 191, 196 (2) (496 SE2d 459)

                                           9
(1998); Seay v. Urban Med. Hosp., Inc., 172 Ga. App. 344, 346 (3) (323 SE2d 190)

(1984); see also John J. Woodside Storage Co. v. Reese, 105 Ga. App. 602, 604 (6)

(125 SE2d 556) (1962) (“remarks of plaintiff’s counsel were prejudicial so as to

require a new trial”).

      (b) Oxford and Harvey contend that Williams violated the trial court’s ruling

granting their motion in limine, which precluded a “golden rule” argument regarding

damages. In light of our holding in Division (1) (a), we only address this issue

because it is a very close call and the issue may arise on retrial.

      The “golden rule” argument urges “jurors to place themselves in the position

of plaintiff or to allow such recovery as they would wish if in the same position.”

Myrick v. Stephanos, 220 Ga. App. 520, 522 (4) (472 SE2d 431) (1996) . “It is

improper because it asks the jurors to consider the case, not objectively as fair and

impartial jurors, but rather from the biased, subjective standpoint of a litigant.” Id.;

see also Hayes v. State, 236 Ga. App. 617, 619, n.2 (512 SE2d 294) (1999).

      Here, during closing argument, Williams’s counsel outlined the following

scenario for the jury:

      Let’s just say that Quentin Tarantino, I’m sure some of you are familiar
      with his movies. Anyway, he was the one that made these horrific


                                           10
      movies. So let’s just say he put an ad in [a local newspaper] and said I
      want help in a movie [] that I’m going to make, the person needs to be
      67 years old, needs to be married, African-American male to play a role
      of Johnny Williams in this documentary, details to be provided during
      the interview, good pay, interviews at Cross Creek Farm, and I need you
      on a tractor April 11, 2013, at noon. . . . The results of that role is that
      you’ll be dealing with a traumatic brain injury and these problems, I
      won’t read them to you again but these are the problems that are going
      to be the consequences of your documentary, and we’re going to pay
      you well to do that. How many takers do you think would serve in that
      role if you promised between 4 and $5 million? That’s going to be your
      situation for the rest of your life to play the role in this Quentin
      Tarantino documentary. But now you’re going to have to deal with that
      the rest of your life after you get paid. You know, you may find one or
      two persons maybe who would be willing to play that role. That’s
      exactly what the Defense said that Johnny Williams is entitled to.


      There was no contemporaneous objection to this argument, but the trial court

granted Oxford and Harvey’s motion in limine on this issue and precluded any

argument that required or asked any juror to put themselves in the place of one of the

parties. The grant of the motion in limine was sufficient to preserve the issue for

appellate review. See Swindle, 260 Ga. at 687.

      The argument in this case comes dangerously close to invoking the “golden

rule,” but because it is ambiguous, we are reluctant to assume that counsel intended

                                          11
its most damaging meaning. See McClain v. State, 267 Ga. 378, 383 (3) (a) (477

SE2d 814) (1996). We do, however, note that the better practice would be to avoid

any argument that could be construed as asking jurors to put themselves in the shoes

of one of the parties.

      (c) Oxford and Harvey also contend that Williams’s counsel’s reference to the

biblical commandment to be “righteous” violated the trial court’s pretrial ruling

precluding argument 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. Given our holding in Division (1) (a), we do not address this issue.

      2. Oxford and Harvey contend that the trial court erred in awarding

prejudgment interest under OCGA § 51-12-14 (a).4 They argue that Williams is not

entitled to recover prejudgment interest because the demand letter was a joint letter

from Williams and his wife, Mrs. Williams settled prior to trial and never obtained


      4
         Pursuant to OCGA § 51-12-14 (a), “[w]here a claimant has given written
notice by registered or certified mail or statutory overnight delivery to a person
against whom claim is made of a demand for an amount of unliquidated damages in
a tort action and the person against whom such claim is made fails to pay such
amount within 30 days from the mailing or delivering of the notice, the claimant shall
be entitled to receive interest on the amount demanded if, upon trial of the case in
which the claim is made, the judgment is for an amount not less than the amount
demanded.”

                                          12
a judgment, and it is therefore impossible determine on what amount prejudgment

interest should be awarded. Because we cannot predict the amount of the award that

Williams will receive on retrial and whether that award would entitle him to

prejudgment interest under this statute, we do not address this issue.

      Judgment reversed. Miller, P. J., and Reese, J., concurring fully and specially.




                                         13
In the Court of Appeals of Georgia


 A19A2217. HARVEY, et al. v. WILLIAMS.



      MILLER, Presiding Judge, concurring fully and specially.

      It is very unfortunate that the verdict has to be reversed in this case. I agree

with the majority, but I am compelled to write separately to express my concerns

regarding the conduct of the parties’ counsel during trial.




                                          14
      Although trial courts are certainly free to intercede when a party is not abiding

by a pretrial ruling,5 the plaintiff’s counsel had a clear duty to abide by the trial

court’s pretrial rulings prohibiting inflammatory remarks, and the remarks in this case

ran afoul of the trial court’s rulings. Further, while we may still be able to review the

defense’s claims regarding the inflammatory remarks, this does not absolve defense

counsel of the obligation to object when necessary to protect their clients’ interests.

Ordinarily, “a party cannot during the trial ignore what he thinks to be error or an

injustice, take his chance on a favorable verdict, and complain later.” Keno v. Alside,

Inc., 148 Ga. App. 549, 551 (3) (251 SE2d 793) (1978).6 If defense counsel had

timely objected, the trial court could have taken the corrective measures needed so

as to avoid a retrial at both the taxpayers’ and clients’ expense. Accordingly, I caution

litigators to be more mindful of best practices during trial proceedings.

      I am authorized to state that Judge Reese joins me in this special concurrence.




      5
         See OCGA § 9-10-185 (“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.”).
      6
         As the trial court noted in its order denying the motion for new trial, defense
counsel failed to object to the inflammatory remarks and thus “should not now claim
error to such.”

                                           15
