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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

THOMAS C. WELLER, JR., )

)

 Plaintiff, )

)

v. ) Civil Action No. 08-00240-CG-C

)

VAN P. FINGER, )

)

Defendant. )

ORDER

This matter is before the court on defendant’s motion for judgment as a matter of law as

to attorney’s fees (Docs. 151, 156), defendant’s motion to alter, amend or vacate judgment

regarding attorney’s fees (Doc. 152), defendant’s motion to vacate the award of punitive

damages (Doc. 154), plaintiff’s responses (Docs. 164, 165), and defendant’s motion to stay

execution of judgment pending ruling on post-trial motions (Doc. 166). The court finds that

defendant’s motions for judgment as a matter of law and to vacate should be denied.

Defendant seeks to have this court set aside the jury’s verdict with regard to both

attorney’s fees and punitive damages. Defendant first argues that the complaint did not assert a

claim for, or make any reference to, attorney’s fees. Under Georgia law, attorney’s fees are

generally not allowed unless “the plaintiff has specially pleaded and has made prayer therefor”

or “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff

unnecessary trouble and expense.” GA. CODE § 13-6-11. Plaintiff points out that, in his

supplemental initial disclosures, plaintiff requested that he be awarded “costs and attorneys’ fees

to redress Defendant’s bad faith and malicious conduct both prior to and during the course of this

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 The court notes that defendant did note Georgia law regarding attorney’s fees in the

joint proposed pretrial document. Defendant included the following as his Thirteenth

Affirmative Defense in his listing of defenses: “Unless authorized by a statute, an award of

attorney fees and expenses of litigation is not available to the prevailing party [see Ga. Proc.

Verdict §7:2; 4 Ga. Proc. Verdict & Judgment §7:27; Padilla v. Padilla, 646 S.E. 2d 672 (Ga.

2007)].” However, defendant did not raise an objection to the adequacy of plaintiff’s claim of

attorney’s fees .(Doc. 93, p. 12). 

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litigation.” (Doc. 164-1). Additionally, in plaintiff’s supplemental response to interrogatories,

plaintiff stated that his claimed damages he sought to recover included “the counsel fees he

incurred to address Defendant Finger’s tortious conduct.” (Doc. 164-2, ¶ 22). Plaintiff again

asserted his claim for attorney’s fees in the parties’ joint pretrial document. (Doc. 93, p. 25). 

Defendant did not raise his contention that plaintiff had failed to plead a claim for attorney’s fees

prior to trial.1

 Defendant filed no motions addressing this issue prior to trial and did not raise the

issue during the pretrial conference. As such, plaintiff argues that defendant has waived any

objection to the attorney’s fees based on plaintiff’s failure to properly plead.

In the Order on Pretrial Conference, this court stated that the order which incorporated

the parties’ Joint Preliminary Pretrial Document (Doc. 93), “constitutes the final statement of the

issues involved in this action.” (Doc. 96, ¶ C). “Dispositive legal issues that are not contained in

the parties’ Joint Pretrial Document, or in any amendments to that document expressly permitted

by order of the court, will not be considered.” (Id.). No amendments to the Joint Pretrial

Document were requested and concomitantly none were permitted by the court. Thus,

defendant’s failure to include the attorney’s fee issue in the Joint Pretrial Document is sufficient

reason for this court to refuse to consider defendant’s motions regarding plaintiff’s failure to

properly plead attorney’s fees.

Plaintiff also argues that the motion should not be considered because defendant did not

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 Although defendant does not expressly state the Rule under which his motion is

brought, Rule 50(b) concerns motions for judgment as a matter of law filed after the entry of

judgment. FED. R. CIV. P. 50(b).

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move for judgment as a matter of law based on plaintiff’s failure to properly plead attorney’s

fees, before the matter was submitted to the jury. “A motion under Rule 50(b)2

 is not allowed

unless the movant sought relief on similar grounds under Rule 50(a) before the case was

submitted to the jury.” Exxon Shipping Co. v. Baker, --- U.S. ----, 128 S.Ct. 2605, 2617 n. 5, 171

L.Ed.2d 570 (2008) (citation omitted). Likewise, a motion to alter or amend a judgment under

Rule 59(e) is not a proper vehicle "to relitigate old matters, or to raise arguments or present

evidence that could have been raised prior to the entry of judgment." Id. (citation omitted); see

also Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (motions for

reconsideration "cannot be used to relitigate old matters, raise argument or present evidence that

could have been raised prior to the entry of judgment") (citation omitted); Arthur v. King, 500

F.3d 1335, 1343 (11th Cir. 2007) (same); Michael Linet, Inc. v. Village of Wellington, Fla., 408

F.3d 757, 763 (11th Cir. 2005) (similar); American Home Assur. Co. v. Glenn Estess &

Associates, Inc., 763 F.2d 1237, 1239 (11th Cir. 1985) (cautioning against use of motion to

reconsider to afford a litigant "two bites at the apple"). The Eleventh Circuit has stated that "a

motion to reconsider should not be used by the parties to set forth new theories of law." Mays v.

U.S. Postal Service, 122 F.3d 43, 46 (11th Cir. 1997); see also Russell Petroleum Corp. v.

Environ Products, Inc., 333 F.Supp.2d 1228, 1234 (M.D.Ala. 2004) (relying on Mays to deny

motion to reconsider based on new arguments). Rather, the law of this Circuit is unambiguous

that "[t]he only grounds for granting a Rule 59 motion are newly-discovered evidence or

manifest errors of law or fact." United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009)

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(citation omitted); see also Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (similar). 

Simply put, "[a] motion to reconsider is only available when a party presents the court with

evidence of an intervening change in controlling law, the availability of new evidence, or the

need to correct clear error or manifest injustice." Gipson v. Mattox, 511 F.Supp.2d 1182, 1185

(S.D. Ala. 2007) (citation omitted).

Defendant orally moved for judgment as a matter of law during the trial, but when asked

by the court to state the grounds for his motion, defense counsel did not mention any issue

regarding attorney’s fees. Defendant’s counsel stated: “It’s the standard – tracks Georgia law

about slander per se, their burden of proof, which is to show an intent to injure and to prove

malice. And that’s what it’s directed to.” (Doc. 164-3, p. 696). However, defendant filed

written motions for judgment as a matter of law, which included the assertion that defendant is

entitled to judgment as a matter of law “regarding the claims for attorney fees on behalf of

Thomas C. Weller, Jr. pursuant to the provisions of Rule 50 of the Federal Rules of Civil

Procedure as it affirmatively appears that Thomas C. Weller, Jr. did not properly plead attorney’s

fees as required by Georgia law.” (Doc. 146, ¶ 17; Doc. 147, ¶ 17). Thus, although the

attorney’s fees issue was not pointed out to the court when counsel was asked to state the

grounds for his motion, defense counsel did generally assert the grounds in writing under Rule

50(a) before the case was submitted to the jury.

Nevertheless, the court finds that waiting until the close of plaintiff’s case, was too late to

raise the issue since defendant had ample opportunity to raise the issue earlier and failed to

include the issue in the Joint Pretrial Document. Defendant’s listing of the issue in his Rule

50(a) motion is an insufficient basis for this court to overturn the jury’s verdict. The court notes

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 In the Joint Pre-trial Document, defendant did assert a defense regarding punitive

damages. However, defendant did not assert a defense based on GA. CODE § 51-12-6. 

Defendant asserted a “Fourteenth Affirmative Defense” stating that “[p]unitive damages may not

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that, as pointed out by plaintiff, defendant neither objected to the jury charges relating to

plaintiff’s claim for attorney’s fees nor objected to the jury verdict form which specifically asked

the jury to determine whether plaintiff is entitled to recover attorney’s fees. (Doc. 148, p. 40). 

In fact, the attorney’s fee portion of the verdict form was the same as that proposed by the parties

in their “joint verdict form” which was submitted to the court prior to trial. (Doc. 135). The

court also notes that plaintiff asserts that he did, in fact, properly plead a claim for attorney’s

fees by alleging that defendant engaged in tortious conduct in bad faith and by including the

claim in his Rule 26(a) disclosures. Additionally, plaintiff argues that if defendant had timely

objected, plaintiff could have amended his complaint to specifically state a claim for attorney’s

fees. The court does not find it necessary to address these arguments as the court finds defendant

waived or abandoned the issue prior to trial and the court will not set aside the jury’s verdict

based on defendant’s post-trial argument. 

As to defendant’s motion to vacate the jury’s award of punitive damages, the court finds

that motion should also be denied. The jury returned a verdict in the sum of $100,000.00 for

compensatory or nominal damages and in the sum of $300,000.00 for punitive damages. 

Defendant argues that under GA. CODE § 51-12-6, punitive damages should not be awarded in a

tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff. 

However, defendant did not assert an objection to punitive damages based on GA. CODE § 51-12-

6 in the parties’ Joint Pre-trial Document, and as previously discussed, the court will not

consider issues that were not included in the Joint Pre-trial Document.3 It could be argued that it

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be awarded under Georgia law in a slander claim unless there is proof by clear and convincing

evidence that the actions of the defendant showed willful misconduct and malice.” (Doc. 93, p.

12).

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 In fact, plaintiff testified that “We’ll never [know] what the damages are, or it will take

several years [to know] how many people he has actually talked to and what he has actually

said...” (Doc. 165-1, pp 8-9).

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was not known until the close of plaintiff’s case whether the damage evidence would indicate

that the injury was only to plaintiff’s peace, happiness, or feelings. However, defendant also did

not object to the jury charges relating to punitive damages and did not object to the verdict form

which asked the jury to fill in the amount of punitive damages to be awarded and asked the jury

whether they found that the defendant acted with the specific intent to harm the plaintiff. (Doc.

148, p. 40). Moreover, § 51-12-6 does not preclude recovery of punitive damages in the instant

case because there was evidence that the plaintiff suffered damaged other than to his “peace,

happiness, or feelings.” There was evidence at trial that defendant caused injury to plaintiff’s

reputation. The testimony did not prove a particular quantity of damage,4

 but indicated that

defendant had made defamatory statements to plaintiff’s employees and colleagues in an attempt

to hurt plaintiff’s reputation and business. Under Georgia law, damages are inferred in

defamation cases where the defendant allegedly made statements “in reference to [plaintiff’s]

trade, office, or profession, calculated to injure him therein.” GA. CODE § 51-5-4. “This type of

defamation is actionable per se and damage is inferred.” Strange v. Henderson, 223 Ga.App.

218, 219, 477 S.E.2d 330, 332 (Ga.App. 1996) (citations omitted). Because there was evidence

of injury to plaintiff other than to his “peace, happiness, or feelings,” § 51-12-6 does not

preclude recovery of punitive damages.

Defendant argues that if the court allows punitive damages, that the punitive damages

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should be capped to a maximum of $250,000.00 under GA CODE § 51-12-5.1 because there was

no evidence in the record to support the jury’s finding of specific intent to cause harm. Section

51-12-5.1 caps the amount of punitive damages that can be awarded in non-product liability

cases unless it is found:

that the defendant acted, or failed to act, with the specific intent to cause harm, or

that the defendant acted or failed to act while under the influence of alcohol,

drugs other than lawfully prescribed drugs administered in accordance with

prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to

that degree that his or her judgment is substantially impaired

GA. CODE. § 51-12-5.1 (e),(f),(g). The jury in this case specifically found that “the defendant

[did] act with the specific intent to harm the plaintiff.” (Doc. 148, p. 40). A judge should only

set aside a verdict when “the verdict is against the clear weight of the evidence or will result in a

miscarriage of justice, even though there may be substantial evidence which would prevent the

direction of a verdict.” See Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183,

1186 (11th Cir. 2001). “The court may not reweigh the evidence and set aside the verdict simply

because it feels some other result would be more reasonable.” United States v. Martinez, 763

F.2d 1297, 1312-1313 (11th Cir. 1985)(citation omitted). Instead, “[t]he evidence must

preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the

verdict stand.” Id. at 1313. 

A review of the testimony in this case reveals ample evidence demonstrating defendant’s

animosity towards the plaintiff. Several witnesses testified about the malicious and vicious

nature of the defendant’s statements. Witnesses testified that they were startled, bewildered, and

shocked by the viciousness of defendant’s statements. The court finds that the nature of the

alleged statements and the circumstances under which they were made clearly indicated an intent

to harm. Thus, the jury’s finding of specific intent to cause harm was not against the clear

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weight of the evidence, and it would not be a miscarriage of justice to let the verdict stand.

CONCLUSION

For the reasons stated above, defendant’s motion for judgment as a matter of law as to

attorney’s fees (Doc. 151, 156), defendant’s motion to alter, amend or vacate judgment regarding

attorney’s fees (Doc. 152), and defendant’s motion to vacate the award of punitive damages

(Doc. 154), are DENIED. 

Since the court has now ruled on the above motions, the court finds that defendant’s

motion to stay execution of judgment pending ruling on post-trial motions (Doc. 166) is MOOT.

DONE and ORDERED this 9th day of March, 2010. 

 /s/ Callie V. S. Granade

 UNITED STATES DISTRICT JUDGE

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