Sweatmans Motion In Limine Memo Of Law Ocr¶

FILED 1/10/2024 12:38 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA JONATHAN SWEATMAN,

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Petitioner,

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V.

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SARAH ZEEMAN,

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CIVIL ACTION

Respondent / Counterclaim

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FILE NO. 21CV9795

Petitioner.

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V.

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JONATHAN SWEATMAN, Counterclaim Respondent.

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§ JONATHAN SWEATMAN’S FIRST MOTION IN LIMINE AND SUPPORTING MEMORANDUM OF LAW

COMES NOW, JONATHAN SWEATMAN, Petitioner/Counterclaim Respondent in the above-styled Civil Action (“Sweatman”), and moves this Court for an Order instructing Respondent/Counterclaim Petitioner Sarah Zeeman (“Zeeman”), Zeeman’s counsel, and all witnesses not to mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner, either directly or indirectly, without first obtaining permission of the Court, outside the

presence and hearing of the jury, any of the subject matter specified in this motion. ARGUMENT I.

THE MOTION IN LIMINE IS AN APPROPRIATE PRETRIAL PROCEDURE

1.

Nature of the Motion

A “motion in limine” is a pre-trial method of determining the admissibility of evidence,

allowing a party to secure a pre-trial ruling on admissibility or a ruling prohibiting any reference

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to certain evidence until its admissibility can be assessed in context of the trial as it unfolds. Andrews v. Wilbanks, 265 Ga. 555, 458 S.E.2d 817 (1995). It is the duty of the Court to impose and prevent statements of prejudicial matters which are not in evidence from being made in the hearing of the jury. O.C.G.A. § 9-10-185. The motion in limine is a recognized way to fulfill this duty, and it also fosters the goal of long-run judicial economy in shortening the trial and appellate process. See generally Charles W. Gamble, The Motion in Limine: A Pretrial Procedure that has Come of Age, 33 Ala. L. Rev. 1 (1981).

A motion in limine may be used in two ways. First, the movant may seek to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial. Second, the movant may seek a ruling on the admissibility of evidence prior to trial. State v. Johnson, 249 Ga. 413, 415, 291 S.E.2d 543 (1982). The Supreme Court of Georgia has recognized that the purpose of filing a motion in limine is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of a jury. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 260 S.E.2d 20 (1979). It is the prejudicial effect of the questions asked or statements made, and not necessarily the prejudicial effect of the evidence itself, which the motion is intended to reach. /d. (quoting Bridges v. City of Richardson, 354 S.W.2d 666, 667 (1962)). 2.

Procedure

A motion in limine may be made in writing or orally at trial. It is not subject to the rules that give the respondent specific periods of time to reply. See Walton v. Datry, 185 Ga. App. 88, 90-91, 363 S.E.2d 294 (1987) (motion in limine need not be served five days before hearing under O.C.G.A. § 9-11-6(d)).

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3.

Preservation of Record for Appeal: Georgia Law

If a motion in limine is denied, it is unnecessary for the movant to object to the admissibility of the evidence when it is introduced during the trial. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 260 S.E.2d 20 (1979); Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984). Moreover, when a motion in limine is granted, the respondent need not attempt during trial to have the evidence introduced. Panos v. Department of Transp., 172 Ga. App. 53, 290 S.E.2d 295 (1982).

II.

SPECIFIC SUBJECT MATTER TO BE EXCLUDED

1.

The Mention of Any Claims and Evidence That Relate To The Dismissed Claims of Invasion Of Privacy / Emotional Distress

“Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. O.C.G.A. § 24-4-401. The Georgia Court of Appeals has defined “relevant” evidence as that “which logically tends to prove or disprove a material fact in issue.” Buckler v. DeKalb County Bd. of Tax Assessors, 263 Ga. App. 305, 587 S.E.2d 797 (2003). “[E]vidence which is not relevant shall not be admissible.” Martinez-Arias v. State, 313 Ga. 276, 285, 869 S.E.2d 501, 508 (2022). “For evidence of other acts to be

admissible, evidence must pass test providing that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Olds v. State, 299 Ga. 65, 786 S.E.2d 633 (2016) While Zeeman originally asserted claims of both invasion of privacy and emotional distress against Sweatman in her Counterclaim filed on January 13, 2023, Zeeman filed an amendment to her Answer and Counterclaim withdrawing her “claims for emotional distress” on

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September 11, 2023. (See Verified Answer and Counterclaim of Respondent Sarah Zeeman and Defendant’s First Amendment To Answer and Counterclaim). Additionally, in Zeeman’s deposition on July 11, 2023, Zeeman’s counsel, Jeff Banks, stated, “to the extent that we’ve implied that that’s, in essence, an invasion of privacy, we abandon that.” Zeeman Dep. 117:2224.

Zeeman’s counsel, Jeff Banks, also “affirmed that Zeeman is no longer seeking claims of

emotional distress” in Zeeman’s deposition. Zeeman Dep. 8:2-5. Zeeman, through her Amended Complaint, has abandoned all claims for emotional distress and the introduction of purported evidence in support of these dismissed claims would only serve to prejudicially inflame the jury. The purported prejudicial facts subject to this motion in limine are those that that relate to the above dismissed claims, including but not limited to allegations that Sweatman pointed a camera towards the inside of Zeeman’s home to be able to further see inside of her home and that Sweatman intentionally shined lights within Zeeman’s home. The presentation of this alleged evidence of Sweatman’s proposed behavior would confuse the jury and cause undue prejudice as it relates to Zeeman’s existing claims of trespass and nuisance, which have no relation to the

above alleged action. 2.

The Existence of Insurance Coverage at Any Stage, Including Voir Dire

It is well settled under Georgia law that “evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant. ...” Gonzalez v. Wells, 215 Ga. App. 494, 445 S.E.2d 332 (1994). In Gonzalez, the trial court had already qualified the jurors with respect to insurance. During voir dire, the judge asked: “Are any of you either stockholders, officers, directors, agents or employees of the Safeway Insurance Company?” Apparently no one responded, since the subsequent questions were on a different topic. Sometime later, Wells’ counsel asked: “Do any of you own or operate a vehicle?” All jurors raised their hands. Wells’ counsel then asked: “Is that vehicle insured?” All jurors again raised their hands. Wells’ counsel further inquired: “And we already asked as a group, no one is

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insured by Safeway; is that correct?” At that point, Gonzalez’ counsel objected and moved for a mistrial. In response, the court stated to Wells’ counsel (at a bench conference): “You are not allowed to ask any questions about insurance unless one of the

person indicates here they work for an insurance company.” The court then remarked to the jury: “Ladies and gentlemen, you are to disregard that last question and put it completely out of your mind.” /d. The Court of Appeals found that the trial court’s curative instruction was not good enough and it erred in not granting defendant’s motion for mistrial. In reversing, and ordering a new trial, the Court of Appeals reasoned, In continuing to make inquiries on the subject of insurance, Wells’ counsel clearly

violated the court’s order on Gonzalez’ motion in limine. This is significant not only because counsel violated a court order, but also because by asking more questions, including questions specifically regarding automobile insurance, counsel increased the

danger of prejudicially impressing upon the jurors the fact that the defendant had liability insurance. Id.

Based on the above-referenced authority, Defendant requests that the Court itself qualify the jury as to the existence of insurance and instruct all parties and their counsel not to inject the prejudicial issue of insurance into this case at any time, including, but not limited to, during the

voir dire process. Zeeman and counsel should be barred from referring to the “defense industry” as that is code for insurance and the insurance industry. Sweatman is not part of the “defense industry” and Zeeman should not be able to inject insurance into the case through clever phraseology.

Sweatman puts the parties on notice that it will seek a mistrial and costs in the event the Court enters an order prohibiting the injection of insurance into the case and such order is violated.

3.

Any Expression by Zeeman’s or Sweatman’s Attorneys of Their Personal Belief or

Opinion as to the Credibility of any Witness, or as to the Merits of Zeman or Sweatman’s Claims, and Damages, including Any Suggestion by Counsel as to the Value Zeeman or Sweatman Place on the Case

“The credibility of a witness shall be a matter to be determined by the trier of fact, and if

the case is being heard by a jury, the court shall give proper instructions as to the credibility of a

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