Stewart and Marcia Weinhoff and their solely-owned corporation, Dar-Court Builders, LLC collectively the Weinhoffs, filed suit in Cobb County Superior Court against a number of defendants,1 including Dominic Firmani and his company, Firmani Pension Services FPS collectively Appellants, asserting claims for negligence, negligent misrepresentation, breach of fiduciary duty, constructive fraud, punitive damages, and attorney fees. The Weinhoffs contended that an error by Firmani and FPS in drafting a Dar-Court-sponsored 412 i pension plan the Plan resulted in significant damage to the Weinhoffs, in the form of additional tax liability, penalties and interest on that tax liability, and attorney fees and other costs associated with an IRS audit of the Plan. The case proceeded to trial and a jury found in favor of the Weinhoffs and against Firmani and FPS. Firmani and FPS now appeal from the orders of judgment entered against them, arguing that they are entitled to a new trial because a script used by the Weinhoffs’ attorney for her direct examination of one of the Weinhoffs’ witnesses was inadvertently submitted to the jury in violation of the continuing witness rule. Appellants further contend that the trial court erred in failing to grant their motions for a continuance and a mistrial, which were based on the Weinhoffs’ production, during discovery, of redacted attorney fee bills and their subsequent introduction at trial of unredacted copies of those bills. Firmani and FPS also assert that the trial court erred in excluding certain testimony offered by their expert witness on damages and in barring testimony regarding an indemnification clause contained in the documents creating the Plan. For reasons explained more fully below, we find no error and affirm the orders of judgment. We also deny the Weinhoffs’ request that we impose sanctions against Firmani and FPS for a frivolous appeal.
Viewed in the light most favorable to the jury’s verdict, Freese II, Inc. v. Moses, 301 Ga. App. 793, 794 689 SE2d 98 2009, the record shows that a 412 i plan is a defined-benefit pension plan created under §412 i of the Internal Revenue Code, and funded entirely with two types of insurance products: life insurance policies and annuity contracts. The contributions to this type of pension plan, therefore, are the premiums paid for the insurance products. Funding a 412 i pension plan provides tax benefits to both the employer sponsoring the plan and the employee participating in the same; the employer gets to deduct the insurance premiums paid as contributions to the plan, while the employee reduces his salary and therefore his taxable income to fund the premiums. The IRS, however, limits the amount of life insurance that can be purchased to fund a 412 i plan. These limits serve to cap the amount of tax deductions available to the employer sponsoring the plan, and they also prevent such a plan from having an excessive amount of life insurance if a participant dies.2 When, as in this case, a 412 i plan is funded with whole life insurance, the premiums paid for that insurance may not exceed 66 2/3 percent of the theoretical contribution generated when determining the Theoretical Individual Level Premium Reserve.3
