Kennison v. Mayfield, A20A2074, A20A2075

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Doyle, Presiding Judge.
• Citation: 856 S.E.2d 738
• Decision Date: 16 March 2021
• Docket Number: A20A2074, A20A2075
• Parties: KENNISON v. MAYFIELD et al.; and vice versa.

856 S.E.2d 738

KENNISON
v.
MAYFIELD et al.; and vice versa.

A20A2074, A20A2075

Court of Appeals of Georgia.

March 16, 2021

856 S.E.2d 741

William McKenzie Dallas III, Karl Patrick Broder, Griffin, Laurie Webb Daniel, Matthew D. Friedlander, Atlanta, for Appellant in A20A2074.

Ben C. Brodhead III, Ashley Brooke Fournet, Michael Brian Terry, Jane D. Vincent, Atlanta, for Appellee A20A2074.

William McKenzie Dallas III, Karl Patrick Broder, Griffin, Laurie Webb Daniel, Matthew D. Friedlander, Atlanta, for Appellee in A20A2075.

Ben C. Brodhead III, Ashley Brooke Fournet, Michael Brian Terry, Jane D. Vincent, Atlanta, for Appellant A20A2075.

Doyle, Presiding Judge.

Keith Mayfield was killed when his motorcycle collided with Vickie Kennison's car as she made a left turn. Mayfield's widow and his estate filed this action alleging that Kennison was negligent and negligent per se for failing to yield to oncoming traffic. Almost twelve years after the collision, the case was tried before a jury over the course of seven days. The jury returned a verdict awarding the plaintiffs damages of $33,438,267.82 and apportioning three percent of fault to Mayfield and ninety-seven percent of fault to Kennison.¹ The trial court entered judgment on the verdict for $3,213,869.79 on the estate's claim, $29,221,250 on the wrongful death claim, and prejudgment interest and court costs. After a subsequent hearing, the trial court also awarded the plaintiffs $12,751,258.60 in attorney fees and $91,018.36 in expenses under OCGA § 9-11-68, the offer of settlement statute.²

Kennison appeals in Case No. A20A2074, arguing that the trial court erred by allowing the plaintiffs to question her about her prior traffic citations, driver's license suspension, and DUI arrest. She also argues that the trial court erred in calculating the amount of attorney fees. The plaintiffs cross-appeal in Case No. A20A2075, challenging the apportionment of fault to Mayfield and the admission of certain evidence and a jury charge relating to Mayfield's speed. For the reasons that follow, in Case No. A20A2074, we affirm the verdict, but vacate and remand the trial court's order awarding OCGA § 9-11-68 attorney fees. We affirm in Case No. A20A2075.

Relevant Facts and Procedural History

Prior to trial, Kennison moved in limine to exclude any reference to her driving record,³ and the trial court granted the motion, noting that the parties consented in open court to that portion of the motion in limine. The court also granted another of Kennison's motions in limine seeking to bar evidence that she had been involved in any traffic collisions or charged with traffic offenses before or after the collision at issue or that she had a history of careless driving.⁴ In its order, the

856 S.E.2d 742

trial court ruled: "After a contested hearing, the Court grants Defendant's [Eighth] Motion in Limine. Neither prior, nor subsequent[ ] automobile collisions involving the Defendant shall be referenced before the jury." The trial court further specifically directed counsel – in bold type – "to notify the court immediately if there is a violation of a motion in limine so the court may consider curative options. "⁵

At trial,⁶ the evidence showed that on March 14, 2007, at approximately 10 p.m., Kennison was driving her car north on State Route 3. She entered the intersection with Talmadge Road, intending to turn left. Mayfield was riding his motorcycle south on State Route 3. As Kennison turned left, she collided with Mayfield's oncoming motorcycle. Kennison did not see Mayfield before the collision, and there was no evidence that either vehicle braked before the collision.

Two witnesses who were in a car driving south on State Route 3 noticed Mayfield while they were stopped at a traffic light in front of a Walmart about a mile before the intersection where the collision occurred. When the light changed to green, the witnesses proceeded forward, gaining speed up to between 55 and 65 miles per hour. Mayfield's motorcycle, which also had been stopped at the light, rapidly accelerated from the light and was traveling much faster than the witnesses. One of the two witnesses estimated that Mayfield was traveling well over 80 to 90 miles per hour, and the other estimated that Mayfield was traveling 95 miles per hour. The witnesses watched the motorcycle "continue getting smaller, like down the strip," until it almost disappeared; to them, he never appeared to slow down. The witnesses also saw the headlights of Kennison's car before the wreck. Another witness who had been stopped at the light in front of the Walmart testified that after the light turned green, the motorcycle pulled away from him and began traveling at 85 to 95 miles per hour. The motorcycle never left his sight, and it never appeared to slow down. Before Kennison completed her turn, Mayfield collided with the rear passenger portion of her four door car. There was evidence that Mayfield could have seen the headlights of Kennison's car and perceived the threat the car posed. Mayfield died as a result of the injuries he sustained in the collision.

At the conclusion of the trial, the trial court entered judgment on the jury verdict in favor of the plaintiffs and granted attorney fees to the plaintiffs pursuant to OCGA § 9-11-68. These appeals followed.

Case No. A21A0274

On appeal, Kennison asks this Court to reverse the jury verdict and remand for a new trial based on erroneous evidentiary rulings. She also asks this Court to reverse the trial court's order awarding the plaintiffs attorney fees pursuant to OCGA § 9-11-68. We discern no basis for granting a new trial, but we vacate and remand the attorney fee order.

1. Kennison's challenges to evidentiary rulings. Kennison argues that the trial court erred by allowing plaintiffs’ counsel to introduce evidence of her traffic citations, including a citation for speeding on State Route 3, the suspension of her driver's license, and her arrest for driving under the influence of alcohol because it violated the motions in limine, was irrelevant and prejudicial, and

856 S.E.2d 743

could not otherwise be used for impeachment purposes. Based on the record before us, Kennison has failed to demonstrate reversible error.

To address the several related issues before us, we set out the relevant testimony, objections, failures to object, and colloquies chronologically. The plaintiffs called Kennison as their first witness for purposes of cross-examination. Plaintiffs’ counsel questioned Kennison about traffic on State Route 3 — the average speed and her own speed in particular.

PLAINTIFFS’ COUNSEL: At that time, you were aware that the average speed on State Route 3 — that a lot of people might travel in excess of the posted speed limit, correct?

KENNISON: Correct.

PLAINTIFFS’ COUNSEL: And wouldn't you agree that you, yourself, have traveled over the speed limit on SR 3?

KENNISON: Umm — probably.

PLAINTIFFS’ COUNSEL: And isn't it true that before you'd told us that you had never traveled over the speed — speed limit on Tara Boulevard?

KENNISON: I might have told you that.

PLAINTIFFS’ COUNSEL: Okay. And so ... but the accurate information is, in fact, that you —

KENNISON: I normally drive —

PLAINTIFFS’ COUNSEL: — you have — you have exceeded the speed limit — either you have or you haven't — might have. That sounds like something that you could — you could probably tell us one way or another. Have you personally —

KENNISON: I might have went —

PLAINTIFFS’ COUNSEL: — exceeded the speed limit —

KENNISON: — 58 over the 55 speed limit.

PLAINTIFFS’ COUNSEL: Okay. So you — you contend the fastest you might have ever traveled on S — State Route 3 would be 58 —

Defense counsel objected at this point on the grounds of "improper character evidence" and that the evidence of Kennison speeding years before was not relevant because there was no contention that she was speeding at the time of the collision with Mayfield. Plaintiffs’ counsel responded that the evidence was relevant to Kennison's ability to understand the speeds of vehicles on the roadway where the collision occurred. The trial court overruled the objection.

Plaintiffs’ counsel continued as follows:

PLAINTIFFS’ COUNSEL: So — just so we confirm, it's your contention that the fastest you've ever driven on State Route 3 would be 58 in a 55?

KENNISON: Correct.

PLAINTIFFS’ COUNSEL: Okay. And you're sure you wouldn't have exceeded more than 58 in a 55 on Tara Boulevard, correct?

KENNISON: That's correct.

Plaintiffs’ counsel then asked for a bench conference in order to inform the court that he wanted to introduce a certified copy of Kennison's 3-year-old conviction for driving 74 miles per hour on State Route 3, which has a speed limit of 55 miles per hour. Defense counsel responded that plaintiffs’ counsel could not use extrinsic evidence to impeach a witness on a collateral, irrelevant matter. He also argued that the conviction amounted to improper character evidence that suggested Kennison was a dangerous driver. The trial court allowed plaintiffs’ counsel to introduce the certified copy of the conviction.⁷

After it was admitted, Kennison admitted having traveled up to 74 miles per...