Middlebrooks v. Hillcrest Foods Inc.

• Decision Date: 11 July 2001
• Docket Number: Nos. 99-10165,99-10734,CREQUE-HARRIS,s. 99-10165
• Parties: (11th Cir. 2001) REGINALD MIDDLEBROOKS, FRANK ODOM, BRENDA P. ROSS, DONNA SCOTT, OTHA ALBRITTEN, et al., Plaintiffs-Appellees, v. HILLCREST FOODS, INC., D.B.A. THE WAFFLE HOUSE, Defendant-Appellant, HAL HANLEY, Defendant. REGINALD MIDDLEBROOKS, SANDRA MIDDLEBROOKS, as next friend of KESHAWNA TYLER, SANDRA MIDDLEBROOKS, as next friend of DACARI MIDDLEBROOKS, FRANK ODOM, as next friend of CARLA ODOM, BRENDA P. ROSS, as next friend of BRENDA M. ROSS, LEAH, as next friend of KYLA HARRIS, and DONNA SCOTT, as next friend of CORY SCOTT, Plaintiffs-Appellees- Cross-Appellants, v. HILLCREST FOODS, INC., D.B.A. THE WAFFLE HOUSE, Defendant-Appellant-Cross-Appellee, HAL HANLEY, Defendant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1241

256 F.3d 1241 (11th Cir. 2001)

REGINALD MIDDLEBROOKS, FRANK ODOM, BRENDA P. ROSS, DONNA SCOTT, OTHA ALBRITTEN, et al., Plaintiffs-Appellees, v. HILLCREST FOODS, INC., D.B.A. THE WAFFLE HOUSE, Defendant-Appellant, HAL HANLEY, Defendant.

REGINALD MIDDLEBROOKS, SANDRA MIDDLEBROOKS, as next friend of KESHAWNA TYLER, SANDRA MIDDLEBROOKS, as next friend of DACARI MIDDLEBROOKS, FRANK ODOM, as next friend of CARLA ODOM, BRENDA P. ROSS, as next friend of BRENDA M. ROSS, LEAH CREQUE-HARRIS, as next friend of KYLA HARRIS, and DONNA SCOTT, as next friend of CORY SCOTT, Plaintiffs-Appellees- Cross-Appellants, v HILLCREST FOODS, INC., D.B.A. THE WAFFLE HOUSE, Defendant-Appellant-Cross-Appellee,

HAL HANLEY, Defendant.

Nos. 99-10165, 99-10734

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

July 11, 2001

Appeals from the United States District Court for the Northern District of Georgia. D.C. Docket No. 97-02411-1-CV-TWT

Before WILSON, COX and GIBSON^*, Circuit Judges.

JOHN R. GIBSON, Circuit Judge:

Hillcrest Foods, Inc., d.b.a. The Waffle House, appeals from a judgment entered against it on a claim for intentional infliction of emotional distress brought by Reginald Middlebrooks and seven other plaintiffs.¹ Hillcrest argues that it is entitled to judgment as a matter of law for numerous reasons, that the Middlebrooks group was not entitled to punitive damages, and that the district court should have ordered either a new trial or a remittitur. The Middlebrooks group cross appeals, arguing that the district court erred in instructing the jury on their race discrimination claim and that, if we remand for a new trial, they are entitled to re-try this claim. We affirm.

On November 22, 1996, the members of the marching band of North Atlanta High School were on the way home from an out-of-town football game. Around midnight, they stopped in Commerce, Georgia to eat. The buses parked at McDonald's, and most band members remained there. A group numbering at least twenty or twenty-five went to Waffle House along with Middlebrooks, who was an adult chaperone. Some of the students ordered and received food and drinks; some ordered, but received only their drinks or nothing; and others were not waited on. The cook, Hal Hanley, who is white, was taking some food off the grill when he turned and said that the motherfuckers who weren't buying anything were going to have to get out and that he was not going to serve any niggers.² Two of the plaintiffs heard both the profanity and the racial epithet, one heard the profanity, and the other five heard nothing.

Hanley then called 911 and stated that a "bus load of black people" were in Waffle House, that some were throwing things which had hit him in the head, and that, "Y'all need to send somebody down here to clear 'em all out before I get a damn knife to the son of a bitches." During the call, Hanley told a Waffle House server that people were throwing things at him, and she responded, "Oh, I didn't know that."

Hanley asked the responding officer, Sergeant Russ Myers, to clear the group from the restaurant. Myers asked them to leave, and they complied. Hanley then locked the door and turned the lights off. The band members congregated in the Waffle House parking lot and then walked back to McDonald's. Most were upset, and some were crying. When the band members returned to their buses and left, the lights were back on at Waffle House and there were customers inside the restaurant.

Hanley testified that the band group was loud and boisterous and that at least two students threw coffee creamers at him. Hanley, who has only a partial left arm, testified that at least three students called him a cripple. None of the other witnesses testified that anyone threw things at Hanley or ridiculed him. Myers testified that when he arrived at Waffle House, the band members were not unruly or loud and they appeared to be behaving very well. One of the plaintiffs testified that the group was excited and that some band members were being loud. Another testified that he poured salt on a companion's head.

Middlebrooks and seven of the band members, all of whom are African American, brought claims against Hanley and Hillcrest for racial discrimination under 42 U.S.C. § 1981 and for intentional infliction of emotional distress under state law. The district court dismissed Hanley before trial.³ The jury found for Hillcrest on the discrimination claim, but found in favor of Middlebrooks and the seven band members on the intentional infliction of emotional distress claim. It awarded $5,000 in actual damages to each plaintiff and a total of $400,000 in punitive damages: $25,000 to Middlebrooks; $45,000 to Sandra Middlebrooks, as next friend of Dacari Middlebrooks; and $55,000 to each of the remaining six plaintiffs.

I.

Hillcrest argues that a variety of reasons entitle it to judgment as a matter of law. It contends that it cannot be liable for Hanley's actions because he was acting outside the scope of his employment and because there was no evidence that it negligently hired or retained him; that the plaintiffs did not prove a prima facie case of intentional infliction of emotional distress because Hanley's conduct was not extreme and outrageous, the conduct was not directed at all of the plaintiffs, and none of the plaintiffs suffered severe emotional distress; and finally, that the plaintiffs were not entitled to punitive damages because there was no evidence of conduct by Hillcrest that would support an award and because punitive damages are not available under Ga. Code Ann. § 51-12-6 (2000) where the only injury is to the peace, happiness, or feelings of a plaintiff. The Middlebrooks group argues that Hillcrest failed to preserve these arguments in its motion for judgment as a matter of law.

A motion for judgment as a matter of law "shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Fed. R. Civ. P. 50(a)(2). This motion can be renewed after trial under Rule 50(b), but a party cannot assert grounds in the renewed motion that it did not raise in the earlier motion. Litman v. Massachusetts Mut. Life Ins. Co., 739 F.2d 1549, 1557 (11th Cir. 1984). The rule protects the non-moving party's right to cure deficiencies in the evidence before the case is submitted to the jury. Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998). The moving party cannot ambush the court and opposing counsel after the verdict when the only remedy is a completely new trial. National Indus., Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1549 (11th Cir. 1986).

At the close of the plaintiffs' evidence, Hillcrest moved for a directed verdict.⁴ The court took the motion under advisement and stated that it would hear from Hillcrest after it presented its evidence. At the close of all the evidence, Hillcrest again moved for judgment as a matter of law and was heard on its motion. With regard to the intentional infliction claim, Hillcrest argued primarily that the dismissal of Hanley precluded its liability for his actions. At the time, the parties were treating negligent hiring as a separate claim, and Hillcrest argued that no evidence showed it had notice of Hanley's propensity to discriminate on the basis of race. Hillcrest also argued that punitive damages were not warranted because there was no evidence that its actions showed willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference.

During its motion for judgment as a matter of law at the close of all the evidence Hillcrest did not argue that the plaintiffs failed to prove a prima facie case of intentional infliction of emotional distress or that Georgia law precludes an award of punitive damages for injuries to a plaintiff's peace, happiness, or feelings. Although Hillcrest also failed to argue that there was insufficient evidence that Hanley was acting within the scope of his employment, the Middlebrooks group mentioned the issue at that time. The Middlebrooks group also addressed the negligent hiring claim in some detail.

In its post-trial motion for judgment as a matter of law, Hillcrest raised all of the arguments it raises on appeal. The Middlebrooks group argued that Hillcrest failed to preserve most of these arguments in its motion for judgment as a matter of law made at the close of all the evidence. The district court denied Hillcrest's post-trial motion, addressing most of its arguments, but holding that Hillcrest had not preserved the argument that section 51-12-6 precludes an award of punitive damages.

We will not reverse the district court's denial of Hillcrest's Rule 50(b) motion for judgment as a matter of law on the basis of arguments that Hillcrest did not raise in support of its Rule 50(a) motion. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1077 (3d Cir. 1991); CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1530-31 (1st Cir. 1996). We conclude that the issues preserved during the hearing on Hillcrest's Rule 50(a) motion are whether there was sufficient evidence to support findings that (1) Hanley acted within the scope of his employment; (2) Hillcrest negligently hired or retained Hanley; and (3) Hillcrest's conduct was adequately egregious to support an award of punitive damages. Because Hillcrest failed to argue that there was insufficient evidence to support a prima facie case of intentional infliction of emotional distress and that Georgia statutory law precludes an award of punitive damages in a case such as this, we will not address these claims.

We review the district court's ruling on a motion for judgment as a matter of law de novo, considering the evidence and the reasonable inferences drawn from it in the light most favorable to the nonmoving party. Slicker v. Jackson, 215 F.3d 1225, 1229 (11th Cir. 2000). Judgment as a matter of law is appropriate only if the evidence is so...