Case: 19-11637    Date Filed: 11/20/2019   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11637
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 4:17-cv-00134-HLM



ROBERT RAY DUNN,
TINA ANN DUNN,

                                                          Plaintiffs-Appellants,

                                  versus

MICHAEL STEWART,
ADVANTAGE WINDOWS, INC.,

                                                         Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (November 20, 2019)

Before MARCUS, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 19-11637      Date Filed: 11/20/2019   Page: 2 of 6




      Robert and Tina Dunn filed this appeal after losing at trial on their claims for

malicious prosecution and intentional infliction of emotion distress, which they

brought against Michael Stewart and Advantage Windows, Inc. (Advantage). As a

brief background, Mr. Stewart owned and operated Advantage, a

home-improvement company. Mr. Dunn contracted with Advantage to remodel

parts of the Dunns’ home. A dispute arose between the parties over the quality of

Advantage’s work, and Mr. Dunn terminated the contract. However, the parties

continued to dispute whether the Dunns owed Mr. Stewart and Advantage for the

services rendered and for certain building materials.

      Mr. Stewart sued Mr. Dunn for breach of contract. Mr. Dunn filed for

bankruptcy—effectively ending the lawsuit. Mr. Stewart then sued Ms. Dunn, but

that suit was dismissed because she was not a party to the contract. Thereafter,

Mr. Stewart initiated criminal proceedings for theft by conversion of the unpaid-for

construction materials. The Dunns were arrested and charged, though the state

ultimately dismissed the charges.

      Subsequently, the Dunns filed a complaint alleging malicious prosecution

and intentional infliction of emotional distress against Mr. Stewart and Advantage.

The parties proceeded to trial.




                                          2
              Case: 19-11637     Date Filed: 11/20/2019    Page: 3 of 6


      At trial, the district court made certain rulings now at issue on appeal. First,

the court excluded three portions of Mr. Stewart’s deposition testimony. The

excluded portions concerned Mr. Stewart’s responses to the following questions:

(1) “What did you expect would be the result of the criminal prosecution of [the

Dunns’] case?”; (2) “Did you think what [the Dunns] had done . . . justified [them]

being put in jail?”; and (3) “If you could go back and do it again, would you still

press criminal charges against [the Dunns]?” The court found that these questions

were improper because they called for speculation or legal conclusions.

      Second, the court rejected the Dunns’ proposed jury instruction, which

stated that malice could be inferred from evidence that a criminal prosecution was

undertaken for the purposes of collecting a debt. Instead, the court instructed the

jury that, under Georgia law, “there shall be no imprisonment for debt.” The court

also instructed the jury that the Dunns were required to prove malice, that malice

could be proved by direct or circumstantial evidence, and that malice could include

personal spite or a “general disregard of the right consideration of mankind.” The

jury returned a verdict in favor of Mr. Stewart and Advantage on both claims.

      On appeal, the Dunns assert that the district court erred by excluding the

three portions of Mr. Stewart’s testimony and by failing to give their proposed

malice instruction to the jury. Because the district court did not abuse its

discretion, we affirm.

                                          3
              Case: 19-11637     Date Filed: 11/20/2019    Page: 4 of 6


                                          I.

      We first address the district court’s exclusion of portions of Mr. Stewart’s

deposition testimony. We review a district court’s ruling admitting or excluding

evidence for abuse of discretion. Chrysler Int’l Corp. v. Chemaly, 

,

1362 (11th Cir. 2002). We will not reverse unless the district court’s decision

amounts to a clear error of judgment, even if we would have decided differently if

the choice had been ours to make. 

      Here, the district court did not abuse its discretion. First, the court properly

excluded testimony regarding whether Mr. Stewart thought that the Dunns

deserved jailtime, as that question called for a legal conclusion. See Montgomery

v. Aetna Cas. & Sur. Co., 

, 1541 (11th Cir. 1990) (“A witness . . .

may not testify to the legal implications of conduct.”). Likewise, the district court

did not abuse its discretion when it excluded as speculative the testimony regarding

whether Mr. Stewart would still press charges against the Dunns if he could go

back in time. See Fed. R. Evid. 701(a) (providing that a lay witness may offer his

opinion if it is “rationally based on [his own] perception”); see also Washington v.

Dep’t of Transp., 

, 300 (5th Cir. 1993) (“[S]peculative opinion

testimony by lay witnesses—i.e., testimony not based upon the witness’s

perception—is generally considered inadmissible.”). Finally, although it’s a closer

call whether the question of what result Mr. Stewart expected of the Dunns’

                                          4
               Case: 19-11637     Date Filed: 11/20/2019    Page: 5 of 6


criminal proceedings asked for speculation, the court’s decision did not amount to

a clear error of judgment. See 

. Accordingly, the

district court did not abuse its discretion by excluding these portions of Mr.

Stewart’s testimony.

                                           II.

      Second, we address the district court’s refusal to give the Dunns’ requested

jury instruction. We review that decision for an abuse of discretion. United States

v. Hill, 

, 850 (11th Cir. 2011). “We will reverse a district court’s

refusal to give an instruction only if: (1) the requested instruction was a correct

statement of the law, (2) its subject matter was not substantially covered by other

instructions, and (3) its subject matter dealt with an issue in the trial court that was

so important that failure to give it seriously impaired the defendant's ability to

defend himself.” 

marks omitted). There is no reversible

error where “the charges, considered as a whole, sufficiently instruct the jury so

that the jurors understand the issues involved and are not misled.” Pesaplastic,

C.A. v. Cincinnati Milacron Co., 

, 1525 (11th Cir. 1985).

      The Dunns argue that the district court should have instructed the jury that it

could infer malice from Mr. Stewart’s use of the criminal process to collect the

alleged debt. To prevail on a malicious prosecution claim under Georgia law, a

plaintiff must show the following: “(1) prosecution for a criminal offense; (2) the

                                           5
              Case: 19-11637     Date Filed: 11/20/2019    Page: 6 of 6


prosecution instigated under a valid warrant, accusation or summons;

(3) termination of the prosecution in favor of plaintiff; (4) malice; (5) want of

probable cause; and (6) damage to the plaintiff.” Nicholl v. A&P Tea Co., 238 Ga.

App. 30, 32 (1999). “Malice consists of: (1) personal spite, or (2) general

disregard of the right consideration of mankind, directed by chance against the

individual injured.” Desmond v. Troncalli Mitsubishi, 

, 75 (2000)

(internal quotation mark omitted). The Georgia Constitution provides that “[t]here

shall be no imprisonment for debt.” Ga. Const. art. I, § 1, para. XXIII.

      The district court did not abuse its discretion when it refused to give the

Dunns’ proposed jury instruction. The district court properly instructed the jury on

the elements of malicious prosecution and the definition of malice under Georgia

law. Thus, the jury instructions sufficiently instructed the jurors, and the jurors

were not misled. See 

. Further, we are not persuaded

by the Dunns’ reliance on Jordan v. Mosley, as that case addressed actual malice in

the context of deciding whether a public official was entitled to official immunity.

, 1357 (11th Cir. 2007). Therefore, we affirm the district court.

      AFFIRMED.




                                           6