[DO NOT PUBLISH]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 MARC US, WILSON , and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 19-11637 Date Filed: 11/20/2019 Page: 1 of 62 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 qualit y of Advantage’s work , and M r. 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 the n 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 b y conversion of the unpaid

- for construction materials. The Dunns were arrested and charged , though the state ultimately dismissed the charges. Subsequently, t he Dunns filed a complaint alleging malicious prosecution and intentional infliction of emotion al distress against Mr. Stewart and Advantage

. The parties proceeded to trial.

Case: 19-11637 Date Filed: 11/20/2019 Page: 2 of 63 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

. T he 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 pu t 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, “the re shall be no imprisonment for debt

. ” The court also instructed the jury that t he 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.

Case: 19-11637 Date Filed: 11/20/2019 Page: 3 of 64 I. We first address the district court’s exclusion of portions of Mr. S tewart’s deposition testimony. We review a district court’s ruling admitting or excluding evidence for abuse of discretion. Chrysler Int’l C orp. v. Chemaly , 280 F.3d 1358 , 1362 (11th Cir. 2002). We will not reverse unless the district court’s decision

a mounts to a clear error of judgment, even if we would have decided differently if
t he choice had been ours to make. Id. at 1363. Here, t he district court did not abuse its discretion . First, the court properly excluded testimony regarding whether Mr. S tewart thought that the Dunns deserved jailtime, as that question called for a legal conclusion. See Montgomery v. Aetna Cas. & Sur. Co. , 898 F.2d 1537, 1541 (11th Cir. 1990) ( “A witness

. . . may not test i fy 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 w itness may offer his opinion if it is “ rationally based on [ his own ] perception ”); see also Washington v. Dep ’ t of Transp. , 8 F.3d 296, 300 (5th Cir. 1993) (“[S] peculative opinion testimony by lay witnesses

— i.e., testimony not based upon the witness ’ s
perc eption

— is generally considered inadmissible. ”). Finally, although it’s a closer call whether the question of what result Mr. Stewart expected of the Dunns’

Case: 19-11637 Date Filed: 11/20/2019 Page: 4 of 65 criminal proceedings asked for speculation , t he court’s decision did not amount to a clear error of judgment. See Chrysler , 280 F.3d at 1362. 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 , 643 F.3d 807, 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 importa nt that failure to give it seriously impaired the defendant's ability to defend himself.” Id. (internal quotation marks omitted). There is no reversible error where “the charges, considered as a whole, sufficiently instruct the jury so that the jurors un derstand the issues involved and are not misled.” Pesaplastic,
C.A. v. Cincinnati Milacron C o. , 750 F.2d 1516, 1525 (11th Cir. 1985). The Dunns argue that the district court should have instructed the jury that it could infer malice from Mr. Stewar t’s use of the criminal process to collect the alleged debt. T o prevail on a malicious prosecution claim under Georgia law, a plaintiff must show the following: “(1) prosecution for a criminal offense; (2) the

Case: 19-11637 Date Filed: 11/20/2019 Page: 5 of 66 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 , 243 Ga. App. 71, 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 Pes aplasti c , 750 F.2d at 1525. Further, w e 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. 487 F.3d 1350 , 1357 (11th C ir. 2007)

. Therefore, we affirm the district court. AFFIRMED. Case: 19-11637 Date Filed: 11/20/2019 Page: 6 of 6