TGM Ashley Lakes, Inc. v. Jennings

Andrews, Presiding Judge,

dissenting.

I respectfully dissent. Because the defendants rested without introducing any evidence, they were entitled to open and conclude the closing arguments. The defendants did not lose this right when the trial court exercised its discretion to allow defense counsel to directly examine defendants called by the plaintiffs for cross-examination during the plaintiffs’ case. The trial court’s refusal, over objection, to allow the defense to open and conclude argument was reversible error requiring a new trial.

The record shows that the plaintiffs rested their case after calling numerous witnesses, including four defendants or agents of defendants called for the purpose of cross-examination pursuant to OCGA § 24-9-81. The trial court exercised its discretion to allow defense counsel to conduct direct examination of the four defendants or agents during the plaintiffs’ case immediately after plaintiffs’ *470 counsel concluded cross-examination. After the plaintiffs rested their case, the defendants rested without calling any witnesses or introducing any evidence.

It has long been the rule in this State that, where a defendant in a civil case offers no evidence, he is entitled to the opening and concluding arguments. Martin v. Martin, 180 Ga. 782, 783, 785 ( 180 SE 851 ) (1935); Peters v. Davis, 214 Ga. App. 885, 886 ( 449 SE2d 624 ) (1994); OCGA § 9-10-186; Uniform Superior Court Rule 13.4 (applicable to state courts through the Uniform State Court Rules). It is also settled law that a defendant who introduces no evidence at trial does not lose the right to open and conclude argument merely because defense counsel is allowed to conduct direct examination of the defendant after the defendant is called in the plaintiff’s case for purposes of cross-examination pursuant to OCGA § 24-9-81. Martin, 180 Ga. at 783 . In Sutherland v. Woodring, 216 Ga. 621 ( 118 SE2d 482 ) (1961), the Supreme Court addressed the following certified question:

Is the defendant in a civil case entitled to the opening and concluding arguments where the plaintiff’s counsel calls him to the stand for the purpose of cross-examination, and where the defendant’s counsel examines the defendant while on the stand in such circumstances on material issues in the case, after the completion of the cross-examination of the defendant by plaintiff’s counsel, nothing further in the way of evidence of any other kind having been introduced by the defendant?

(Punctuation omitted.) Id. at 622 . Citing Martin, 180 Ga. at 785 , the court answered the question in the affirmative — that under the circumstances the defendant was entitled to open and conclude argument. Accordingly, “mere direct examination of defendant by his counsel when defendant has been called by plaintiff for cross-examination does not constitute the offering of evidence for this purpose. [Cit.]” Peters, 214 Ga. App. at 886 ; Milligan v. Milligan, 209 Ga. 14, 16 ( 70 SE2d 459 ) (1952); Lissmore v. Kincade, 188 Ga. App. 548, 550 ( 373 SE2d 819 ) (1988).

Moreover, where the evidence presented at trial does not demand the verdict rendered, to erroneously deny the defendant the right to open and conclude the closing argument is reversible error which requires the grant of new trial. Milligan, 209 Ga. at 15-16 ; Thico Plan, Inc. v. Ashkouti, 171 Ga. App. 536, 537 ( 320 SE2d 604 ) (1984); Lissmore, 188 Ga. App. at 549-550 ; Canada Dry Bottling Co. v. Campbell, 112 Ga. App. 56, 57-58 ( 143 SE2d 785 ) (1965); Auto Mut. *471 Indem. Co. v. Campbell, 56 Ga. App. 400 ( 192 SE 640 ) (1937); Jones v. Chambers, 94 Ga. App. 433 ( 95 SE2d 335 ) (1956).

The right to open [the closing argument] is important. It enables the party to give direction to the case, very often to choose the ground on which the battle shall be fought. And the right to conclude is more important still. Even in fair and legitimate argument, the party concluding has the advantage of knowing precisely the line of his opponent, and therefore of directing his attention to it, and arraying everything in the case, that fairly illustrates and sustains his view of it.

Buchanan v. McDonald, 40 Ga. 287 , 288 (1869). It is undisputed that neither the verdict establishing liability nor the amount of damages awarded in the present case was demanded by the evidence, so the trial court’s erroneous denial of this important right to the defendants demands reversal and a new trial.

There is no basis for the majority’s contrary conclusion that the defendants lost the right to open and conclude the closing arguments. The record shows that the plaintiffs exercised their rights under OCGA § 24-9-81 to call the two individual defendants and two agents of a corporate defendant for purposes of cross-examination. See Colwell v. Voyager Cas. Ins. Co., 251 Ga. 744, 746 ( 309 SE2d 617 ) (1983). This prompted defense counsel to ask the trial court for permission to conduct direct examination of the defendants and agents after plaintiffs’ counsel finished each cross-examination. As the Supreme Court held in Colwell ,

If the adverse party or agent as specified in OCGA § 24-9-81 ... is called, and a timely announcement is made by the calling party that the witness is being called for cross-examination, the calling party may cross-examine the witness and the adverse party may question him only by direct examination. 5 . . . [T]he trial court has discretion to allow the noncalling party to question the witness at the conclusion of the cross-examination, or to require the noncalling party to recall the witness during the noncalling party’s portion of the case. [Cit.]

Id. at 747, n. 5; Jones, 94 Ga. App. at 433 .

*472 Defense counsel argued that he should be entitled to conduct direct examination after the cross-examination because there were separate and distinct interests between the defendants, because the trial court had discretion to allow him to conduct the examination, and because, if the court exercised that discretion, the trial would be more efficient. Plaintiffs’ counsel responded by directing the trial court to the holding of Barton v. Strickland, 208 Ga. 163 ( 65 SE2d 602 ) (1951), where the court concluded that, after plaintiff’s counsel cross-examines under OCGA § 24-9-81, defense counsel has no absolute right to examine the defendant. The trial court responded that:

You may have a case that they don’t have an absolute right, but do you have anything that says I don’t have the discretion to allow them? ... I think it’s a lot easier for the jury to hear from one witness all at once than to piecemeal it. It’s more efficient. It makes more sense. You don’t have to recover ground to bring the examination to context. I’m going to allow it.

But plaintiffs’ counsel continued to object:

Judge, we believe that he’s going to seek to do this with every witness. It interferes with the presentation of our case, and we would take exception to it. We understand the Court’s ruling. This is not the only witness he’s going to seek to do it with. Every time we put a witness up [under OCGA § 24-9-81] trying to move our case along, he’s going to seek to do that.

The trial court replied:

That’s maybe why he said he could do his case in one day. He’s going to use all your time. But I think that in the long run it will aid the jury in understanding the issues because they’re going to hear everything from a witness together rather than having it broken up.

Plaintiffs’ counsel continued:

One other point, Your Honor. ... If [defense counsel] is allowed to direct examine this witness, we regard that as opening his case to the extent that he is doing direct. Because if not, then he could not put up any evidence and [be] allowed to do closing and close. We believe that would be incredibly unfair because he is in essence opening up his case by performing direct. . . . The only thing we would *473 want to point out is if he should do direct in our case, he should be deemed to have put up evidence so that he doesn’t try to sandbag us.

The trial court replied: “We’ll deal with that when we get to it. It’s not an issue yet.” Finally, after a recess at which the trial court examined the case law, the court reiterated its ruling:

[A]t this point I’m going to exercise my discretion to allow the examination of witnesses by the defendant even though they’ve been called for purposes of cross. And if the defendant puts up no other evidence after the plaintiff rests, we’ll then address the question about whether they’ve waived the right to both opening and close. But I anticipate that won’t come up.

Thereafter, the plaintiffs crossed-examined the two individual defendants and two agents for a corporate defendant pursuant to OCGA § 24-9-81, and in each case the trial court allowed defense counsel to conduct a direct examination of the witness after the cross-examination. During defense counsel’s direct examination of the witnesses, plaintiffs’ counsel interposed several hearsay objections, one objection that the witness was giving conflicting testimony, one objection that a question mischaracterized testimony, and one objection to the form of a question. There were no other objections, and other than the rulings on the objections, the trial court made no rulings respecting defense counsel’s direct examinations of the defendants during the plaintiffs’ case. As to all four defendants called for cross-examination, the trial court allowed plaintiffs’ counsel to recross-examine the witness after defense counsel finished direct examination.

At the conclusion of the plaintiffs’ case, plaintiffs’ counsel moved the trial court for the right to open and conclude the closing argument. Defense counsel, who thereafter rested without calling any witnesses or introducing any evidence, objected and argued that, because the defendants presented no evidence, the defense was entitled to open and conclude the closing arguments. 6 The trial court *474 ruled that the plaintiffs were entitled to open and conclude argument because the defendants had introduced evidence when defense counsel was allowed to directly examine the defendants after they were called by the plaintiffs under OCGA § 24-9-81. According to the trial court, when the court exercised its discretion to allow defense counsel to examine the defendants after they were called by the plaintiffs for cross-examination,

I allowed that more for the convenience of the jury and hearing from one witness all at once, rather than having that witness’s testimony broken up. But I do believe that my recollection is that those witnesses’ testimony was that the defendants went beyond clearing up issues raised by the plaintiff in direct examination and affirmatively introduced some evidence themselves through those questions. So given that, I think the defendant has presented evidence, although for the purposes of streamlining the trial, it was done out of order. So I’m going to give the plaintiff [the] right to open and conclude and make the first and last closing arguments.

There is no support in the record or the law for the trial court’s ruling. The record is clear that the trial court exercised its discretion to allow defense counsel to conduct direct examination of the defendants during the plaintiffs’ case after plaintiffs’ counsel conducted cross-examination under OCGA § 24-9-81. In exercising this discretion, the trial court decided to allow defense counsel to conduct the examinations during the plaintiffs’ case rather than requiring the defense to recall the witnesses during the defense’s portion of the case. Colwell, 251 Ga. at 747, n. 5 . When a trial court exercises this discretion, a direct examination by defense counsel on material issues in the case — conducted during the plaintiffs’ portion of the case — does not constitute the introduction of evidence by the defense for purposes of determining whether the defense has the right to open and conclude closing argument. Sutherland, 216 Ga. at 622 ; Martin, 180 Ga. at 783 ; Peters, 214 Ga. App. at 886 . Defense counsel did nothing more than conduct the direct examination which the trial court exercised its discretion to allow. The fact that the trial court may have exercised this discretion because it would help streamline the case changes nothing. Moreover, there is nothing in the record which could remotely be construed as a ruling by the trial *475 court that, every time a defendant was called by the plaintiffs and cross-examined under OCGA § 24-9-81, the defense was allowed to interrupt the plaintiffs’ case, open its own portion of the case to call the defendant out of order for direct examination, then allow the plaintiffs’ case to recommence for the next defendant to be called and cross-examined.

Decided December 1, 2003

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, John C. Bonnie, Nancy G. Cook, for appellants.

Matthews & Steel, John D. Steel, Charles A. Mathis, Jr., Douglas P. McManamy, for appellees.

To sustain the trial court’s ruling, the majority employs a similarly twisted logic. The majority finds that defense counsel, by various implications, convinced the trial court to allow him to periodically call the defendants during the plaintiffs’ case for efficiency, while at the same time indicating the defendants were not concerned about the right to open and conclude closing argument.

To the contrary, this is not a complicated issue, and both the law and the record are clear. The trial court exercised its discretion to allow defense counsel to conduct direct examinations of the defendants and agents after the plaintiffs called them for cross-examination. The ensuing direct examination of the defendants during the plaintiffs’ case cannot be construed to work a forfeiture of the defendants’ right to open and conclude closing argument.

Cf. Thomas v. Baxter, 234 Ga. App. 663, 665-666 ( 507 SE2d 766 ) (1998) (within trial court’s discretion to allow leading questions or questions exceeding the scope of the plaintiff’s examination of the witness under OCGA § 24-9-81).

Contrary to plaintiffs’ claims, the defendants were not required to assert the right to open and close before the plaintiffs submitted testimony. Such prior notice is required “only where the party has the right to open and conclude closing arguments at the time that the other party testifies.” Hussey v. Hussey, 273 Ga. 735, 737 ( 545 SE2d 880 ) (2001). Since the plaintiffs had the burden of proof on their claims, the right to open and conclude argument rested with the plaintiffs while they presented their case. Id. at 736-737, n. 2 ; OCGA § 9-10-186. The defendants did not admit a prima facie case, so they did not acquire the right to make opening and closing arguments. OCGA § 9-10-186. It follows that the defendants were not required to announce in advance that they did not intend to introduce evidence, or to *474 assert in advance the right to open and conclude arguments, before putting the plaintiffs to the trouble of establishing their case. OCGA § 9-10-186; Hussey; 273 Ga. at 737, n. 3 ; Campbell, 56 Ga. App. 400 .