Stolte v. Fagan
322 Ga. App. 775
Ga. Ct. App.2013Background
- Kerry Stolte sued dentist M. James Fagan III for dental malpractice; the case was tried to a jury and resulted in a defense verdict.
- During defense closing, counsel twice made improper comments: first referring to Fagan’s "reputation," and shortly after urging the jury that the community "trusts" Fagan. Plaintiffs objected to the reputation remark; the court sustained the objection but gave no curative instruction or rebuke. Plaintiffs did not contemporaneously object to the trust remarks.
- The jury deadlocked after lengthy deliberations, adjourned for the weekend, later returned, and reached a defense verdict.
- On appeal the Court of Appeals initially affirmed; the Georgia Supreme Court reversed and remanded, instructing that certain criminal-law principles apply in civil cases and that uncorrected improper argument must be evaluated for whether it could have affected the verdict.
- On remand the Court of Appeals held the uncorrected reputation comment (and the court’s failure to rebuke) could have affected the jury’s verdict and reversed, so it did not decide other issues (including whether the trust comments changed the result or claims about jury selection).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court’s failure to excuse certain prospective jurors for cause | The court erred by refusing strikes for cause; error was harmful without need to show exhaustion of peremptories | Denial is harmless unless plaintiff used all peremptory strikes (civil rule) | Not reached on merits because case reversed on other grounds (Supreme Court extended criminal rule to civil cases) |
| Court’s duty after sustaining objection to improper closing remark about reputation | After sustaining objection, court had independent duty to take remedial action (rebuke/curative instruction); failure likely affected verdict | No duty beyond sustaining objection / inserting minimal comment in standard charge was sufficient | Court had independent duty; failure to rebuke or give curative instruction could have affected verdict — reversal and new trial |
| Failure to contemporaneously object to subsequent "trust" remarks | Trust remarks were improper; because no contemporaneous objection, plaintiffs must show the argument in reasonable probability changed the result | Without contemporaneous objection, standard is higher — must show reasonable probability of changed result | Not decided on remand (court reversed on reputation comment so did not resolve whether trust remarks independently required new trial) |
| Applicability of criminal-case precedent (Harris, O’Neal) to civil trials | Criminal precedents requiring reversal where juror strikes denied without exhaustion of peremptories and requiring court-initiated remedial action after sustained objection should apply in civil cases | Maintain older civil-line rule that harmlessness requires exhaustion of peremptories and less stringent court duty after objection | Georgia Supreme Court extended Harris and O’Neal principles to civil cases; Court of Appeals applied that guidance on remand |
Key Cases Cited
- Stolte v. Fagan, 291 Ga. 477 (Supreme Court decision reversing Court of Appeals and remanding) (clarifying remedial-duty and harmlessness standards)
- Stolte v. Fagan, 311 Ga. App. 123 (Court of Appeals initial opinion later vacated) (original appellate decision)
- Harris v. State, 255 Ga. 464 (criminal precedent on peremptory-exhaustion harmlessness rule extended to civil cases)
- O’Neal v. State, 288 Ga. 219 (criminal precedent holding trial court must take remedial action when objection to argument is sustained)
- Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga. App. 622 (applied prejudice analysis for improper argument)
- Smith v. Finch, 285 Ga. 709 (overruled Steele on other grounds)