Wellstar Health Sys., Inc. v. Sutton, s. A12A1426
| Citation | 734 S.E.2d 764 |
| Decision Date | 27 November 2012 |
| Docket Number | A121427.,Nos. A12A1426,s. A12A1426 |
| Parties | WELLSTAR HEALTH SYSTEM, INC. v. SUTTON et al. Bauer et al. v. Sutton et al. |
| Court | United States Court of Appeals (Georgia) |
734 S.E.2d 764
WELLSTAR HEALTH SYSTEM, INC.
v.
SUTTON et al.
Bauer et al.
v.
Sutton et al.
Nos. A12A1426, A121427.
Court of Appeals of Georgia.
Nov. 27, 2012.
[734 S.E.2d 765]
Donald Austin Gillis, W. Scott Henwood, John E. Hall Jr., David A. Sapp, Atlanta, for Appellant.
Thomas William Malone, Darren Summerville, Atlanta, Meri Kim Benoit, for Appellees.
McFADDEN, Judge.
These related appeals arise from a mistrial in a medical malpractice case. The defendant hospital challenges the trial court's declaration of a mistrial and denial of its motion to set aside the mistrial and enter judgment in its favor. But the hospital acquiesced in the court's decision to declare a mistrial. More fundamentally, there was no verdict upon which to enter a such a judgment. The defendant doctor and his medical practice challenge a jury charge and the grant of a motion in limine. As to the jury charge, the case must be retried, and the Suttons acknowledge error; so we do not reach the issue. As to the motion in limine, there has been no showing of harmful error. We therefore affirm.
The record shows that Lori and Landon Sutton filed a medical malpractice action against Dr. Gregg Bauer, Marietta OB/GYN Affiliates, P. A., and WellStar Health System, Inc., alleging negligence during the birth of their son. The case was tried before
[734 S.E.2d 766]
a jury. On the second day of deliberations, the jury sent a note to the trial judge indicating that it had reached a decision as to WellStar, but was unable to reach a decision as to Bauer. The note did not indicate whether the decision was in favor of or against WellStar. The trial judge informed the parties of the note and suggested that an Allen charge as to the desirability of a verdict was appropriate. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Attorneys for all the parties agreed with the suggestion, and the court then gave the Allen charge to the jury.
Thereafter, the trial judge and the attorneys discussed the possibility of the jury being deadlocked as to one of the defendants. Expressing concerns about apportionment, the attorney for Bauer asserted that if there was a verdict for only one defendant and not the other, then a mistrial should be declared. When asked to comment, counsel for WellStar stated that he agreed with Bauer's counsel that a verdict against one but not the other defendant would require a mistrial. Later, Bauer's counsel reiterated the defense position that if there was either a verdict for or against only one defendant, and a disagreement as to the other, then a mistrial was mandated. And again, counsel for WellStar acquiesced in that position, stating, “I don't have anything to add to what [Bauer's counsel] said.”
After further deliberations, the jury continued to be deadlocked, and the trial court declared a mistrial. None of the parties objected and the jury was dispersed. WellStar subsequently filed a motion asking the court to set aside the mistrial and enter judgment in its favor, based on affidavits of three jurors claiming that the jury had reached a decision in favor of WellStar. The trial court denied the motion, but issued a certificate of immediate review. This court granted WellStar's application for interlocutory review. In Case No. A12A1426, WellStar appeals; and in Case No. A12A1427, Bauer and Marietta OB/GYN cross-appeal.
WellStar complains that the trial court erred in declaring a mistrial. However, even if there were any error, it was invited by WellStar. As recounted above, WellStar twice joined with co-defendant Bauer in arguing to the trial court that if the jury reached a verdict as to one defendant and remained deadlocked as to the other, then a mistrial was warranted. “It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party's own trial tactics or conduct procured or aided in causing.” (Citations and punctuation omitted) Wallace v. Swift Spinning Mills, 236 Ga.App. 613, 617(2), 511 S.E.2d 904 (1999). See also Green v. Sommers, 254 Ga.App. 446, 446–447(1), 562 S.E.2d 808 (2002) (induced error provides no basis for reversal on appeal). Furthermore, when the trial court declared a mistrial,...
To continue reading
Request your trial
-
Washington v. State
...which it is handed to the plaintiff's counsel or other person directed by the Court to receive it. ”); WellStar Health Sys., Inc. v. Sutton, 318 Ga.App. 802, 804(2), 734 S.E.2d 764 (2012) (“Where a jury agree on their verdict, write it out, have it signed by their foreman, and deliver it to......
-
Kidney v. Eastside Med. Ctr., LLC
...authorized to render advisory opinions as to potential error. Accordingly, we do not reach this issue." Wellstar Health System v. Sutton, 318 Ga. App. 802, 805 (3), 734 S.E.2d 764 (2012) (citations and punctuation omitted). See also Dempsey v. Gwinnett Hosp. System, 330 Ga. App. 469, 475 (3......
-
Mabry v. State Farm Mut. Auto. Ins. Co., A15A0800.
...the insured's ability to recover all sums the insured is legally entitled to recover).15 See generally WellStar Health Sys. v. Sutton, 318 Ga.App. 802, 805(3), 734 S.E.2d 764 (2012). ...
- Ransom v. State