Kinard et al v. Gallina et al

Filing 32

ORDER granting 5 Motion to Dismiss. Plaintiffs' complaint is dismissed with prejudice and this case stands closed. Signed by Chief Judge J. Randal Hall on 5/18/17. (cmr)

IN THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

HAMILTON KINARD,
KINARD,

and BRITTANY

*

Plaintiffs,

CV

616-040

v.

*

Individually and
as Agent of Purple Heart
JOHN

GALLINA ,

Homes,

*

Inc.,

Individually and
as Agent of Purple Heart
DALE BEATTY,

*
*

Homes,

Inc.,

ASHELY

DOANE ,

Individually and
as Agent of Purple Heart

Homes,

Inc.,

Individually and
as Agent of Purple Heart
JIM LONCAR,

Homes,

Inc.,

and

PURPLE

HEART

HOMES,

*

INC.,

Defendants.

ORDER

The
between

present
a

charity

Heart Homes,

Inc.

action
seeking

stems
to

from

assist

an

wounded

("Purple Heart Homes''),

it sought to assist,

Hamilton Kinard.

unfortunate
veterans,

dispute
Purple

and a wounded veteran

At this

stage the Court

must determine if the complaint filed by Mr. Kinard and his wife
contains claims for which the law provides a remedy and whether

those claims are supported by factual allegations of sufficient

specificity.

(Doc. 5.)

The Court finds the complaint deficient

in both regards.
I. Background

Purple

Heart

veterans

for

injuries

in

Beatty

saw

Homes

is

wounded

need

Iraqi

for

disabled veterans.

charity

veterans.

Operation
a

a

After

Freedom,

housing

(Doc.

established

that

John

Purple Heart

Homes

accessible homes at

Gallina

properly

lip. 2008,

Purple Heart Homes to address that need.

helps place

wounded

sustaining

could

5 at 2. )

by

serious
and

Dale

accommodate

they established

(Id.)

veterans

a substantial discount.

in new,
(Id. )

handicap-

It does this

by requiring that participating veterans take out two loans,
worth

approximately

20%

the

remaining amount.

off

the

the

second loan.

20%

loan,

of

the

(Id.)

then

value

and

a

second worth

If the veteran successfully pays

Purple

(Id.)

home's

one

Heart

Thus,

Homes

qualifying

waives

repayment

veterans

handicap-accessible housing at a nearly 80%

of

can receive

discount.

(Id.

at

3.)

On

May

Contract")

8,

with

2013,

Plaintiffs

Purple

Heart

entered

Homes

into

a

to purchase

contract

a

("the

house.

(Doc.

1-2 at 3.)

The Contract set the purchase price at $175,000,

it

Plaintiffs

required

Loan"

worth

$145,000.

provisions.

to

$31,500,

(Id.)

obtain

and

a

two

loans:

"Second

a

"First

Priority

First,

the

Contract

established

that

Priority

Loan"

The Contract also contained several

and

worth

important

it,

alone,

"shall

be

deemed

agreed

upon,

to

it

being

representations,

oral."

(Id.

acknowledges

contain

6.)

is an

relying solely on his/her
private

Third,
any

inspections

the

warranty

performed

"the

on

on

modifications

Buyer

D.

to

(Id.)

purchase

legal

On
Purple
it

should

repairs

chooses

22,

2013,

Homes.

be

years,

On
court.

provide

they

had
that

certain

repairs

and

clarified

been

advised
into

Private

Plaintiffs

(Doc.

marked

1-2

"Paid

at

and

paying

off

the

gaye
16.);

a

Home

February
1-1

15,
at

a

that
to

in

"the

consult

real

estate

Inspection

Promissory

The

Note

Satisfied"

First

whichever occurred first.

(Doc.

(Id.)

listed those repairs

security deed canceled within six months

successfully

is

admitted

entering

a

Buyer

and any

cannot
that

or

it

Contract

have

"that

"[t]he

obtain."

Seller

perform

before

and

to

Fourth,

the

written

Property

(Id.)

and it

outside

The Buyer

renovations

they

counsel

that

purchase.

"the

no

either

or

to

that

are

conditions

is

(Id.)

July
Heart

Buyer

Property,"

agreement,"

recommended."

the

Finally,

acknowledges

competent

agreements,

'AS IS'

and

there

inspection of the

agreed

the

terms

it provided

property."

has

the

that

specified that

any

the

Seller

Exhibit

that

Contract

or

Second,

that this

of

understood

warranties,

at

all

Note

to

provided that

and

the

related

of either the Borrower

Priority

Loan

or

fifteen

(Id.)

2016,

Plaintiffs

filed

a

lawsuit

in

state

11.)

Plaintiffs make three allegations in

their

complaint.

breached

two

allege that
and

a

separate

Defendants

second,

concept

of

$500,000

First,

a

(Id.

breached the

that

original

contract

Plaintiffs

result

allege

contracts.

subsequent

novation.

as

Plaintiffs

of

at

formed

claim

Defendants'

Defendants

12.)

Plaintiffs

Contract
through

damages

for
the

sale
legal

excess

breach

alleged

in

of

of

both

contracts.

Second,
in

Plaintiffs

purporting

Plaintiffs

to

allege

that

perform"

assert

that

the

"Defendants

were

Contract.

"Defendants

(Id.

intentionally

negligent
at

14.)

allowed

inept

and unqualified supervision and inept and unqualified volunteers
to

engage

upon

Plaintiffs

have

also

exhibited

negligence in

Plaintiffs'

the

repairs

assert

a

and

that

pattern

construction

promised."

"Plaintiffs

such

of

show

of

breabh

that

(Id.)

Defendants

contract

and

their prior dealings with other veterans."

complaint,

however,

does

such
(Id. )

not provide any additional

allegations detailing such prior negligence.
Finally,
litigiousness.
have

acted

in

Plaintiffs
(Id.)
bad

allege

Plaintiffs

faith,

have

a

claim

allege

only

been

for
that

stubbornly

stubborn
"Defendants

litigious,

and

have caused Plaintiffs undue and unnecessary trouble and expense
in terms

of

O.C.G.A.

§

13-6-11

and

Plaintiffs

are

entitled to

an

award of reasonable attorney fees and their costs and expenses."

(Id. )

Plaintiffs

allegation.

provide

no

further

details

supporting

this

In April 2016,

Defendants removed the case to this Court,

asserting diversity jurisdiction under 28 U.S.C. § 1331.

1.)

(Doc.

Plaintiffs made no attempt to amend their complaint after

removal.
(Doc.

Defendants now move to dismiss Plaintiffs' complaint.

5.)

11. Legal S tandard

"To survive a motion to dismiss,
sufficient factual matter,

accepted as true,

to relief that is plausible
556 U.S.

662,

678

(2009)

556 U.S.

544,

570

two-part

test.

the

plaintiff

rather

whether
relief.

than

mere

those
Id.

has

at

id.

(quoting Bell Atl.

at

stated
le'gal

facts

might

"factual

reasonable

'state a claim

Corp.

v.

Iqbal,

Twombly,

Applying this standard requires a
679.

First,

specific

the

facts

conclusions.

plausibly

Court

whether

supporting

Id.

give

asks

a

Second,

rise

to

claim

it

a

asks

right

to

680.

The first prong of the
plead

to

on its face.'" Ashcroft v.

(2007)).

See

a complaint must contain

content

inference

inquiry requires that the plaintiff

that

that

allows

the

the

defendant

court

is

to

draw

the

for

the

liable

j

misconduct alleged." Id. at 678.

While the Court must accept as

"true all of the allegations contained Jin a complaint," it must
not

"accept

as

true

allegation."

allegations"

Id.

will

not

a

legal

conclusion

Generalized

allow

the

couched

conclusions

plaintiff

to

as

a

factual

and

"unlock

the

"bare

doors

of

discovery."

facts

that

See

"show"

Once

the

the

Court

id.

The

defendant's

separates

from mere legal conclusions,
and

"determine

entitlement

complaint
context

whether

to

a

the

Id.

specific

they

cannot

must

be

plausibly

at

plausible

merely

allow

the

at

specific

67 9.

factual

679.

claim

requires

give

allegations

consistent

Court

to

rise

"Determining

for

relief

.

true

to

an

whether

.

.

[is]

a

a

the reviewing court to draw

on its judicial experience and common sense."
facts

assert

it must accept those facts as

Id.

specific task that

must

misconduct.

they

relief."

states

plaintiff

with

infer

the

that

Id.

Well-pleaded

alleged misconduct;

such

misconduct

was

which

show

the

Id.

The

i

plausible.

Id.

possibility

must

of

allege

at

678.

misconduct

facts

that

Thus,

are

push

conceivable to plausible."

Finally,

while

facts

not

enough.

the

claim

"across

complaint

line

from

Id. at 683.

a plaintiff does ]not

precision'

each element of a claim, it is still necessary that a

complaint

"contain

the

recovery

under

some

Inc.

Stephens,

v.

every

either

direct

material
viable

Inc.,

or

elements

legal

500

el'ement

allege

inferential

necessary

theory.'"

F.3d

or

to "allege a

fact'

all

cover

have

"specific

respecting

to

the

only

1276,

allegations

to

Fin.

1282-83

"with

sustain

Sec.

a

Assur.,

(11th

Cir.

2007)(quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
678,

683

(11th Cir.

2001)).

III.

Defendants'

made
(1)

by
the

contract

motion

Plaintiffs

in

individual

between

Discussion

to

dismiss

their

named

Purple

challenges

complaint.

Defendants

Heart

Homes

all

Defendants
were

and

not

the

claims

argue

party

Plaintiffs;

that

to

the

(2)

the

terms of the Contract itself preclude any breach based upon the

Plaintiffs'

alleged facts;

(3)

Plaintiffs failed to sufficiently

plead the material elements of a novation;
tort claim is not supported by law; and (5)

(4)

the intentional

Plaintiffs' stubborn

litigiousness claims are conclusory allegations.
addresses Defendants'
A.

The Court now

arguments.

Breach-of-Contract Claims

Plaintiffs'

contracts.

complaint

Defendants

breached

two

First, they allege Defendants breached the original

contract for sale.

a novation

alleges

of

the

Second, they allege Defendants entered into

original

contractj,

and

that

Defendants

breached the new contract established by the novation.
1. Breach-of-Contract Claims against Named Defendants

The Court dismisses, at the outset^

claims

all breach of contract

(for the alleged breach of either the Contract or the

contract established by novation)

John Gallina,

Dale Beatty,

against the named Defendants

Ashley Doan,

and Jim Loncar.

The

Court dismisses these claims because Plaintiffs never actually
formed a contract with the named Defendants.

Thus, they cannot

claim that the named Defendants ever breached a contract.

Plaintiffs

Defendants

agents

never

because

formed

the

a

named

the

Corporations

are

business

were

called

Purple

corporation

to

protect

with

Defendants

for

legislature

contract

organizations

human

decision

the

only

named

acting

Heart

Homes.

designed

makers

as

by

from

the

becoming

personally liable for actions taken by the corporations they own

or operate.
2014).

that

Dep't of Transp. v. McMeans,

As a result,

corporations

shareholders,

754 S.E.2d 61,

"[a] cardinal precept of corporate law is

are

separate

legal

entities

officers, directors, and employees."

Because

a

natural

person,

63 (Ga.

corporation

is a separate

it must act

legal

from

(Id. at 63).

entity,

through agents.

their

but

not

"It deals

with

other corporations and with natural persons by its agents;
can

deal

Tech.

agent

with

Grp.,

of

a

the

Inc.,

world

in

no

other

485 S.E.2d 22,

corporation

way."

Eckles

24-25 (Ga.

can only be

v.

1997).

personally

a

it

Atlanta

Thus,

liable

an

to

a

contract if a court ignores the corporate form by "piercing the

corporate veil" or if the agent takes action to make himself a
party

to

the

contract

in

his

Yellowbook Sales and Distrib.
App.

personal

Co.,

capacity.

760 S.E.2d 644,

Buffa
646

v.

(Ga.

Ct.

2014).

Because the named Defendants werp mere agents of Purple
Heart Homes,

they cannot be bound by the contract Plaintiffs

made with Purple Heart Homes unless they have taken some action
to

make

themselves

personally

liable.

Courts

determine

if

agents

at

have

the

made

plain

capacity [a]
Here,

the

themselves

language

of

personally

the

liable

contract

"to

representative is bound." Buffa,
plain

language

of

entered

the

into

Contract

looking

determine

first

in

what

760 S.E.2d at 646.
makes

Defendants;

they entered into a contract with Purple Heart Homes

the

Contract

did

not

specifically

complaint

would

allegations

plausibly

showing that

into

a

contract

preclude

fail because

with

the

named

even if the plain language of

Plaintiffs'

entered

with

that

never

But,

contract

clear

Plaintiffs

- a separate legal entity.

a

by

the

Plaintiffs'

it makes

named

Plaintiffs.

no

claim,

factual

Defendants
Thus,

ever

Plaintiffs

cannot sue the individual named Defendants for an alleged breach
of

either

contract.

2. Breach of Original Contract by Purple Heart Homes

The Court

Heart

Homes

now

examines

breached

the

Plaintiffs'

original

allegation that

contract

for

Purple

sale.

"The

elements for a breach of contract claim in Georgia are the (1)

breach and the (2)

resultant damages

(3)

to the party who has

the right to complain about the contract being broken."

Dewrell

Sacks, LLP v. Chicago Title Ins. Co., 749 S.E.2d 802, 806 (Ga.

Ct. App. 2013).
three

ways,

contract;

"A breach of contract may arise in any one of

namely:

by

renunciation

of

liability under

by failure to perform the engagement;

something which renders performance impossible."

the

or by doing
Bd. of Regents

of the Univ.

Sys.

of Ga.

v. Doe,

630 S.E.2d 85,

93

(Ga.

Ct.

App.

2006).

Plaintiffs'

sufficient

Contract.

claim fails because Plaintiffs have not alleged

facts

to

show

that

Purple

Heart

Homes

breached

the

Plaintiffs allege that Purple Heart Homes assured them

it would "repair and otherwise modify the said property from the
As

Is

condition

to

make

and maintenance free."

that

Purple

Heart

the
(Doc.

Homes

property

100%

1-1 at 13.)

breached

the

handicap

accessible

They then allege only

Contract.

Plaintiffs'

complaint does not allege sufficient facts for two reasons.

First,

the

Contract

itself makes

this

claim

implausible.

Although Plaintiffs failed to include a copy of the Contract in
their complaint,
removal.

Ctr.

Cir.

dismiss,

if

See Speaker v.

for Disease

(11th

it

is

Defendants included a copy in their notice of
U.S. Dep't. of Health and Human Servs.

Control

2010) (noting

and Prevention,

that

"[i]n

623 F.3d

ruling

upon

1371,

1379

a motion

to

the district court may consider an extrinsic document

(1)

central

to the plaintiff's

claim,

and

(2)

its

authenticity is not challenged." (internal quotations omitted)).
The Contract states that it "shall be deemed to contain all the

terms and conditions agreed upon, it being understood that there
are

no

outside

representations,

either written or oral."
that

the

property

is

warranties,

(Doc. 1-2 a|t 6.)

sold "AS

IS"

or

agreements,

It then declares

and that

Plaintiffs

are

"relying solely on [their] inspection jof the Property and any
10

!

private

inspections

that

[they

chose]

to

obtain."

(Id.)

It

also waives all warranties on any repairs to the property Purple
Heart

Homes

Finally,

made

it

prior

Purple

the

by

(Id. )

Plaintiffs'

specifically

modifications
Contract

to

Nowhere

Heart

listing

does

it

signing

enumerates

Homes

them

in

state that

the

the

agreed

to

Exhibit
Purple

repairs

make
D

of

Heart

Contract.

after

and

signing

the

Contract.

Homes

agreed to

make the home "100% handicap accessible and maintenance free."
Second,

plausible
facts

claim

for

what

Plaintiffs,
showing

Contract

1-2

Plaintiffs

Purple Heart

did

however,

what

breached.

it

allegations are conclusory.

relief,

explaining how

showing

(Doc.

Plaintiffs'

not

do

make

provisions

no

of

Homes

that

must

allege

"failed to

it

have

factual

Contract

specific

perform"

should

specific

the

To state a

or

done.

allegations

Purple

Heart

Homes

Plaintiffs allege only that Defendants "breached this
and

the

at

Novation

13.)

and

failed

and

refused

to

This is a conclusory allegation.

perform."

Plaintiffs

must provide allegations of greater specificity if they wish to

draft a complaint with allegations that "plausibly give rise to
an entitlement to relief."

Because

Plaintiffs

Iqbal,

556 U.S.

have

not

at 679.

j provided

any

factual

allegations supporting a plausible claim that Purple Heart Homes
breached

the

Contract,

dismiss Plaintiffs'
for

the

Court

GRANTS

Defendants'

motion

to

claim that it breached the original contract

sale.

11

3. Breach of Contract Created through Novation
Plaintiffs
second

contract

novation

defines
same

also

in

created

Georgia

novation

matter

and

another

simple

parties

are

allege

law

that

through
is

less

indirectly:
based

on

contract

introduced

Purple

no

so

novation.
than

"A

as

The

contract

consideration

the

to

Homes

same

change

concept
Georgia

does

person

not

Code

the

destroy

but,

to

a
of

regarding

parties;

the

breached

The

clear.

simple

new

between

Heart

if

new

whom the

obligation is due, the original contract is at an end." O.C.G.A.

§

13-4-5;

Georgia

see

Georgia

courts

novation,

Contracts:

have

likewise

to the new contract,

(4)

declined

Litigation

to

§

clearly

the

validity

(3)

of

2015) .

law to be,

10:10.

define
"(1)

a

(2) the agreement of all the parties

the extinguishment of the old contract,

the

new

Multibank 2009-1 RES-ADC Venture,

Ct. App.

and

and instead offer four elements of a novation:

previous valid obligation,

and

Law

one."
LLC,

River

Forest,

771 S.E.2d 126,

Inc.
130

v.

(Ga.

This Court understands novation under Georgia

stated more directly, either (1)

a substitution of a

new party to the contract for an original party to the contract
or (2) the intentional substitution of a new contract for an old
contract.

See Georgia Contracts: Law and Litigation § 10:10.

Plaintiffs contend that the parties entered into a novation
which substituted a new contract for the old contract.

survive a motion

facts

to make

to dismiss,

Plaintiff must

it plausible that
12

(1)

allege

the parties
!

Thus, to

sufficient

intended to

substitute a new contract
the

on

parties

whether

formed

a

for

valid

their previous

provides

and

The

contract.

complaint

Plaintiffs'

second

contract,

focuses

Court

sufficient

(2)

factual

allegations that the parties formed a valid second contract.
A

valid

contract

requires

"parties

able

to

consideration moving to the contract,

the assent

to

subject

the

the

terms

contract

establish

accrues

of

the

can

contract,
operate."

consideration

any benefit

when

trouble,

v.

390

S.

Corp.,

a

O.C.G.A.

the

who

905,

a

of the parties

matter

upon

13-3-1.

makes

which

Parties

the

promise

whom the promise

is made

or disadvantage."

S.E.2d

Taking away the legalese,

§

party

and the party to

undergoes "any loss,
Webco

and

contract,

908

(Ga.

Mann Elec.
Ct.

App.

Co.

1990).

consideration exists when the parties

exchange something of value: "I will give you my car if you give
me $1."

The party making

the promise

(the seller)

benefit of $1 in exchange for the loss of his car.

whom the promise is made (the buyer)

receives

a

The party to

undergoes a loss of $1 in

exchange for the benefit of the car.

Thus,

the parties have

exchanged something of value - the exchange need not be equal and established consideration.

Parties

assent

"when the minds

of

the parties meet

at

the

same time, upon the same subject-matter; and in the same sense."
Cox Broadcasting Corp. v. Nat'l. Collegiate Athletic Assoc, 297
S.E.2d 733,

737

(Ga.

1982).

That is:,

parties

assent

at the

moment they agree to be bound by the i
terms of a contract and
13

they
of

share

the

a

mutual

terms

alleged

no

they

facts

understanding

are

agreeing

supporting

of

to.

the

the

scope

and obligations

Plaintiffs,

existence

of

however,

have

consideration

or

assent.

Plaintiffs
of

have

consideration

made

no

because

allegations

they

make

no

showing

allegations

benefit gained or burden borne by either party.
§ 13-4-5.
original

the

Plaintiffs
contract

property

allege that the parties

on

the

"100%

regardless of the "AS
at 13.)

repair
their

accessible

of

any

new

See O.C.G.A.

entered into the

Defendants

and

IS" language in the

existence

would make

maintenance

contract.

free"

(Doc. 1-1

Plaintiffs then allege that Defendants agreed to "fully

and

maintain

original

complaint,

work"

under

however,

agreed to do,
to

their

duties

consideration.

bound

assumption that

handicap

the

makes

Rather,

after

the

they

contract.

no

Plaintiffs

failed
(Id.)

allegations
aver

only

to

perform

Plaintiffs'
of

that

any

new

Defendants

for a second time, what they were already legally

do.

But,

even

if

true,

this

is

not

consideration,

because "[a]n agreement on the part of one to do what he is

already legally bound to do is not a sufficient consideration

for the promise of another."
S.E.2d 9,
sufficient

11-12

(Ga.

Ct.

consideration

exchanged anything

Citizens Trust Bank v. White,

618

App. 2005). Such an agreement is not
because

of value.

the

parties

They have

simply

have

not

not

reaffirmed a

previous commitment to which they were already legally bound.
14

Because Plaintiffs have not made any factual allegations showing
the

existence

plausible

of

claim

new

that

consideration,

the

parties

they

entered

have

into

not

a

new

made

a

contract

through novation.

Similarly,

allegations
contract,

an

Plaintiffs

that

Purple

because

inference

replace

the

whether

a

objective
conclude

Purple

Contract
party

has

the

a

asks

2016).

contracting

Plaintiffs,

ever

assented

ajnd

to

a

When

contract,

contract.

Defendant

actions)

They

parties'

assented

no

agreed

to

determining

courts

use

an

actions

manifested

an

Moreno jv. Smith, 788 S.E.2d 349

however,

make

new

a reasonable person would

make

no

factual

that show any intention by Purple Heart Homes
new

a

supporting

Plaintiffs

contract.

factual

to

any allegations

Homes

whether

intention to make an agreement.
(Ga.

sufficient

new

assented

standard that

made

not made

Heart

with

not

Homes

Heart

they have

that

that

have

factual

(whether orally,

to enter

allegations

in writing,

or when Defendant assented.

Rather,

allegations

or

into a

about

how

through its

they make a broad

allegation that "when the obvious and egregious nature of the

improper or lack of performance became known to and acknowledged

by defendants,

they agreed to fully repair and maintain their

work, and thereby entered a Novation."
is

a

conclusory

allegation

that,

(Doc. 1-1 at 13.)

like

the

first

This

breach

of

contract claim, also lacks the factual specificity necessary to

15

survive
motion

B.

a motion
to

dismiss

Intentional

to

dismiss.

this

Thus,

the

Court

GRANTS

claim.

Tort

Plaintiffs'

second

claim

asserts

that

"Defendants

negligent in purporting to perform this contract."

14.)

Defendants'

Plaintiffs'

complaint,

however,

(Doc.

were

1-1 at

has no basis in law:

It
is
well
settled that mere
failure to perform a
contract does not constitute a tort.
A plaintiff in a
breach of contract case has a tort claim only where, in
addition to breaching the contract,
the defendant also

breaches an independent duty imposed by law.
even

in

situations

where

the

contract

is

This is true

breached

in

faith,
where
the
courts
have
consistently
held
punitive damages are not available because there has
no

tort.

ServiceMaster

2001) .

Co.

v.

Martin,

Accordingly,

dismiss

C.

bad

that
been

this

the

556

S.E.2d

517,

Court

GRANTS

521

(Ga.

Defendants'

App.

motion

Ct.

to

claim.

Stubborn Litigiousness

Under

O.C.G.A.

generally

shall

where

plaintiff

the

therefore

been

and

not

where

stubbornly

§

13-6-11

"[t]he

be

allowed as

expenses

a part

has

specially pleaded

the

defendant

litigious,

or

has

of

has

the

and

acted

of

damages;

has

in

caused

litigation

bad

the

made

prayer

faith,

have

acted

in

bad

complaint on this

faith,

have

been

count

stubbornly

has

plaintiff

unnecessary trouble and expense, the jury may allow them."
entirety of Plaintiffs'

but

The

is "Defendants
litigious,

and

have caused Plaintiffs undue and unneceissary trouble and expense
i

in terms of O.C.G.A.

§ 13-6-11 and Plaintiffs are entitled to an

16

award of reasonable attorney fees and their costs and expenses."
(Doc.

1-1

at

allegations

14.)

Plaintiffs

supporting

their

make

claim.

statutory language of § 13-6-11.
is

the

definition

Defendants'

D.

of

motion

Plaintiffs'

Finally,

a

They

specific

merely

this

allegation,

the

Court

turns

Plaintiffs

its

attempted

additional

documents

complaint.

not

Normally,

attention

to

support

attached

courts

to

Response

the

to

limit

their

or

referenced

their

(11th

Inc.

Cir.

outside
claims

the
and

already

done

v.

Lucent

2005).

Courts

complaint

if

undisputed

when

Techs.,

whether

supplemental

433

are

Nevertheless,

finds

that,

even

if

the

—

should

1337,

to
as

the

were

1340

a

n.3

Court

declines

be

of

Plaintiffs'

sale

has

filed
to

by

decide

considered

complaint,

documents

their

documents

this

for

the Court

documents

in

with

complaint."

consider

contract

analyzing the sufficiency of Plaintiffs'
Court

F.3d

central

the

In these

consideration

however,

authenticity

considering

(Id.)

the

may,

they

in

Defendants.

Inc.,

numerous

complaint

complaint's sufficiency to the "four corners of the
Maxcess,

GRANTS

claim.

filings made after Defendants filed their reply brief.

filings,

the

complaint

Court

Supplemental Filings and Defendants'

the

factual

recite

Because Plaintiffs'

conclusory

to dismiss

no

when

because the

accepted,

they

would not alter the Court's decision.

Plaintiffs' supplemental filings include (1) an email showing a

purported promise, made in 2012, to buijld a house that is "100%
17

accessible and maintenance

free"

contract

house

for

irrelevant,

sale

of

however,

the

because

(doc.

7 at

(docs.

the

29,

1)

and

30).

Contract,

(2)

an unsigned

Both

signed

items

in

are

2013,

specifically states that it is the final agreement, regardless of any
i

previous
See

written or

First

Data

("Where a conflict

representations made

Inc.

POS,

oral

v.

Willis,

between the parties.

546 S.E.2d 781,

exists between oral

784

(Ga.

2001)

and written representations,

it has long been the law in Georgia that if the parties have reduced
their agreement to writing,

all oral representations made antecedent

to execution of the written contract are merged into and extinguished
by

the

contract

Plaintiffs'

and

are

supplemental

not

binding

filings,

even

upon

if

the

parties.").

Thus,

considered by the

Court,

would not have remedied the complaint's deficiencies.
Ill.

Conclusion
I

For

the

reasons

stated

above,

Plaintiffs'

complaint

adequately state a claim upon which relief can be grounded.

fails

to

Thus, the

Court GRANTS Defendants' motion to dismiss with respect to all counts.

(Doc. 5.)

The Court dismisses Plaintiffs] complaint WITH PREJUDICE.

The Clerk shall CLOSE this case and TERMINATE all deadlines.

ORDER ENTERED at Augusta, Georgia, this

/<jr^ day of May,

2017.

/ CHIEFSTOjDGE J. RANDAL HALL
UNITED SfTATES DISTRICT COURT
(N DISTRICT OF GEORGIA

18