Tindall v. H & S Home, LLC, Civil Action No. 5:10-CV-044(CAR)

• Court: United States District Courts. 11th Circuit. Middle District of Georgia
• Writing for the Court: C. ASHLEY ROYAL
• Docket Number: Civil Action No. 5:10-CV-044(CAR)
• Parties: TERRY CARTRETTE TINDALL, Plaintiff, v. H & S HOMES, LLC, et. al., Defendants.
• Decision Date: 20 October 2011

TERRY CARTRETTE TINDALL, Plaintiff,
v.
H & S HOMES, LLC, et. al., Defendants.

Civil Action No. 5:10-CV-044(CAR)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

SO ORDERED: October 20, 2011

ORDER ON HORTON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON CLAIMS FOR MENTAL ANGUISH, PAIN, AND SUFFERING & MOTION TO STRIKE AFFIDAVIT

Currently before the Court is the Horton Defendants' "Motion for Partial Summary on Plaintiff's Claims for Mental Anguish, Pain and Suffering" [Doc. 153]. Defendants' original Motion, however, does not seek partial summary judgment on Plaintiff's claim for damages based upon her mental anguish, pain, and suffering as the title suggests. The Motion and initial brief instead contain arguments for judgment to be awarded to the Horton Defendants on any claim Plaintiff may have for "intentional infliction of emotional distress."

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Plaintiff has responded that no such claim was ever asserted. Indeed, this is clear from paragraph 75 of Plaintiff's first Amended Complaint:

The fraud of the defendants [has] caused Plaintiff great mental anguish, pain and suffering for which Plaintiff is entitled to damages determined by the enlightened conscience of the jury.

(See Amended Complaint at ¶ 75 [Doc. 5]). No version of Plaintiff's Complaint ever includes mention of "intentional infliction of emotional distress." Plaintiff simply seeks to recover damages for mental anguish, pain, and suffering as an element of the general compensatory damages sought in conjunction with her claims of fraud.

It is well settled that, when a plaintiff seeks compensatory damages arising from an intentional tort, evidence as to mental anguish is relevant and admissible. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 275, 329 S.E.2d 900 (1985). Here, Plaintiff claims to have suffered great mental anguish and financial stress due to the Horton Defendants' intentional and tortious conduct. Plaintiff alleges that, because Defendants have failed to pay the judgment awarded to her, she has been unable to provide for her family or pay her bills and has thus also suffered damage to her credit reputation. According to Plaintiff, the lack of finances has caused her to suffer stress, anxiety, depression, and mental anguish that she would not have experienced had Defendants compensated her for her prior damages.

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The Horton Defendants, nonetheless, construed paragraph 75 of Plaintiff's first Amended Complaint as an independent tort claim for "intentional infliction of emotional distress." Defendants argue that they are entitled to judgment on this claim because Plaintiff is unable to present evidence establishing three of the four elements required to sustain a claim for "intentional infliction of emotional distress": (1) that the Horton Defendants' conduct was extreme and outrageous; (2) that the Horton Defendants' conduct was the cause of Plaintiff's emotional distress; and (3) that Plaintiff's emotional distress was sufficiently severe. Other than a brief reference to "mental anguish, pain, and suffering" in the title of the Motion and conclusion of the brief, Defendants make no mention of Plaintiff's claim for mental anguish damages based on the other alleged intentional torts.

Obviously, the Court cannot grant judgment on Plaintiff's claim for damages simply because Defendants label it a cause of action for intentional infliction of emotional distress. This is especially true where the Complaint plainly alleges an intentional tort and seeks damages for mental anguish as an element of general compensatory damages. See Clark v. West, 196 Ga. App. 456, 458 395 S.E.2d 884 (1990).

The claim for which the Horton Defendants seek summary judgment is separate and distinct from that stated in the Complaint. A plaintiff is not required to satisfy the elements of intentional infliction of emotional distress in order to recover compensation

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for mental anguish. See Ga. Law of Damages §§ 4:3-4:4 (2011-12 ed.); Walters v. City of Atlanta, 803 F.2d 1135, 1146 (11th Cir. 1986). Thus, because Plaintiff never stated a claim for intentional infliction of emotional distress, Plaintiff needed to do no more than simply inform Defendants of this fact to defeat their Motion. Plaintiff, however, went a step further. Her Response Brief [Doc. 217] clarifies that she is seeking damages for mental anguish, pain, and suffering caused by Defendants' fraud and attempts to explain why she is entitled to recover these damages as a matter of law.¹

When enlightened by Plaintiff's Response, Defendants immediately switched gears and began arguing that Plaintiff cannot recover damages for mental anguish, pain, and suffering - a legal issue entirely different from that raised in Defendants' original Motion. In fact, Defendants' Reply might as well be an entirely new motion for partial summary judgment, as it raises, for the first time, issues regarding whether Plaintiff can recover for mental anguish, pain, and suffering as an element of her general compensatory damages.

In light of all these new arguments, Plaintiff filed a Motion to File a Sur-reply [Doc. 242]. If allowed, Defendants will, no doubt, seek to respond to that. Such is the

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problem when a movant changes theories mid-stream and makes new arguments in their reply brief. For this reason, the Court is not required to consider new arguments raised for the first time in a reply. See Hill v. Oil Dri Corp. of Ga., 198 Fed. Appx. 852, 856 (11th Cir. 2006) (holding that district court did not abuse its discretion in refusing to consider limitations issue raised for the first time in plaintiffs' reply brief); see also e.g., United States v. Coy, 19 F.3d 629, 632 n. 7 (11th Cir. 1994) (A[a]rguments raised for the first time in a reply brief are not properly before a reviewing court@) (citation omitted); Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 317 n. 89 (S.D. Ala. 2006) (Athis argument is not properly raised because plaintiffs submitted it for the first time in their reply brief@); Egidi v. Mukamai, 571 F.3d 1156, 1163 (11th Cir. 2009) ("Arguments not properly presented in a party's initial brief or raised for the first time in a reply brief are deemed waived."); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999) (holding that an issue raised for the first time in a reply brief was waived).

The Horton Defendants could have certainly made their reply arguments in their initial brief. Again, it is clear from the Complaint that Plaintiff was seeking damages for mental anguish, pain, and suffering she endured because of Defendants' alleged fraud. It is plainly stated. Still, Defendants made no reference to this claim for damages and chose instead to address a non-existent tort claim for intentional infliction of emotional

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distress. Because Defendant's Motion seeks judgment on a claim that was never asserted, it must be DENIED as moot.

The Court's simple denial of Defendants' Motion, however, does not mean that the Court is taking Defendants' actions lightly. The present Motion is so inappropriate that it is difficult to believe Defendants filed it in good faith or that they found the Motion to be substantially justified in light of the plain language used in Plaintiff's Complaint. Even if the error was not clear to Defendants when the Motion was filed, it was certainly made clear by Plaintiff's Response. Defendants should have then moved to withdraw their Motion. Defendants chose, instead, to proceed with the Motion by improperly raising new arguments in their Reply. Defendants surely must have known that a reply brief is not an appropriate vehicle for presenting new arguments or legal theories to the Court.

At this point, the Court is not prepared to find that Defendants acted in bad faith or otherwise filed the Motion for an improper purpose. It is recommended, however, that Defendants take inventory of the many motions and arguments still pending before the Court and withdraw any that may be as unnecessary as the one at bar. The Court, obviously, has no intent to chill the right of Defendants' attorneys to act as zealous advocates for their clients. An attorney's zeal must, nonetheless, be constrained within the bounds placed upon him as an officer of the Court. Rhodes v. MacDonald, 670 F.

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Supp. 2d 1363, 1365 (M.D. Ga. 2009). "It is the obligation of every lawyer . . . not to clog the courts with frivolous motions . . . ." Polk County v. Dodson, 454 U.S. 312, 323, 102 S. Ct. 445, 70 L.Ed.2d 509 (1981).

The issue remains whether this Court should allow Plaintiff an opportunity to file a sur-reply as requested and consider Defendants' reply to issues raised by Plaintiff in her Response Brief. It would be in this Court's discretion to do so. See Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D. Ga. 2005). Furthermore, it appears that, even though the matters were not appropriately raised on summary judgment, some of Defendants' arguments will, more likely than not, come up again. See e.g., Hargett v. Valley Federal Sav. Bank, 60 F.3d 754, 762 (11th 1995) (finding no error when statute of limitations defense was raised in...