Cesnik v. Edgewood Baptist Church

United States Court of Appeals,

Eleventh Circuit.

No. 95-8151.

Blane CESNIK, Kristi Cesnik, Plaintiffs-Appellants.

v.

EDGEWOOD BAPTIST CHURCH, d/b/a New Beginnings Adoption and
Counseling Agency, et al., Defendants-Appellees.

July 5, 1996.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 93-CV-141-COL), J. Robert Elliott, Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior
Circuit Judge.

TJOFLAT, Chief Judge:

This case arises out of the adoptions of two newborn babies.

The adopting parents contend that the adoption agency deliberately

misrepresented that the infants were healthy when, in fact, they

were severely mentally and physically disabled. The adopting

parents brought this suit against the church that operates the

adoption agency and against three individuals involved directly or

indirectly in the adoptions. The parents' complaint presented

multiple common-law and statutory (both state and federal) tort

claims and a claim for breach of contract. On motion for summary

judgment, the district court dismissed all of the parents' claims.

This appeal followed.

With respect to the common-law tort claims, we are able to say

with confidence that the district court was correct in relying on

the statute of limitations to bar the claims. With respect to the

remainder of the appellants' claims, however, all that we can say

is that, with a few exceptions, the district court's granting of
summary judgment cannot be sustained on this record. Our review of

these claims is limited because the appellants have presented us

with a "shotgun" complaint, which is so muddled that it is

difficult to discern what the appellants are alleging beyond the

mere names of certain causes of action.

We begin this opinion with a statement of the facts, which we

glean from the depositions and affidavits that the parties

presented to the district court in support of and in opposition to

the appellees' joint motion for summary judgment. In drawing this

statement of facts, we consider the evidence in the record in the

light most favorable to the non-movants, the appellants. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,

2513, 91 L.Ed.2d 202 (1986). After setting out the facts, we

examine the appellants' complaint, and the district court's reasons

for disposing of appellants' claims. We then explain why summary

judgment was appropriate on some of appellants' claims and why some

of their claims should not have been disposed of summarily.

I.

Blane and Kristi Cesnik, who live in St. Cloud, Minnesota, are

the parents of four severely mentally and physically disabled

children, all of whom they have adopted. They adopted their two

youngest children, Caleb and Eli, through the New Beginnings

Adoption and Counseling Agency, an unincorporated entity operated

by the Edgewood Baptist Church, a corporation organized under

Georgia law with its place of business in Columbus.1

1
The Cesniks adopted two disabled girls prior to the
adoptions that are the subject of this lawsuit. New Beginnings
was not involved with those prior adoptions.
 In November of 1989, Kristi Cesnik called Phoebe Dawson, the

director of New Beginnings, and told Dawson that she and her

husband were seeking to adopt a healthy, non-disabled child of any

sex and any race. On November 20, 1989, a baby boy, whom the

Cesniks would name Caleb, was born at a hospital in Columbus.

Dawson contacted the Cesniks by telephone and told them that she

had obtained and reviewed the medical records of Caleb's delivery,

including the results of tests that the Cesniks had asked to be

performed. Dawson told them that all of the medical records and

other information she had obtained indicated that the boy was

perfectly healthy. Dawson also told the Cesniks that Caleb's birth

mother had received prenatal care since the sixth week of pregnancy

and that she had not used drugs during the pregnancy.

Dawson delivered Caleb to the Cesniks on December 10, 1989, at

an airport in Minnesota. The Cesniks soon noticed that Caleb had

health problems. Four to six months after the placement, the

Cesniks received Caleb's medical records.2 The records showed that

the birth mother had, in fact, received no prenatal care, that she

had tested positive for opiates and barbiturates at the time of

delivery, that the delivery had been complicated, and that Caleb

had been born prematurely. The Cesniks' doctors soon diagnosed

Caleb with cerebral palsy, asthma, developmental disorders, and

severe behavioral problems. The doctors suspect that most or all

of these conditions were caused by exposure to drugs and alcohol

2
At the time of Caleb's placement, the Cesniks signed a form
that stated that they had received Caleb's medical records. This
statement was not true. Dawson had told the Cesniks that signing
the form at that time would make it unnecessary for her to make
another trip to Minnesota.
during the pregnancy and by a lack of prenatal care.

When the Cesniks asked Dawson about the discrepancy between

the medical records and what she had told them, Dawson explained

that she had not actually reviewed Caleb's medical records before

he was placed with the Cesniks because the records had been

switched at the New Beginnings agency with those of another mother

with the same name. Dawson also claimed that Caleb's birth mother

had lied about her condition and her use of drugs. The Cesniks

accepted Dawson's explanations. The adoption of Caleb became final

on July 10, 1990.

In December of 1990, the Cesniks contacted New Beginnings

again, seeking to adopt a healthy, non-disabled, black or

mixed-race child.3 On February 12, 1991, a baby boy, whom the

Cesniks would name Eli, was born at a hospital in Columbus. Dawson

contacted the Cesniks by telephone and told them that she had

obtained and reviewed the medical records of Eli's delivery,

including the results of tests that the Cesniks had asked to be

performed. Dawson told them that all of the medical records and

other information she had obtained indicated that the boy was

perfectly healthy. Dawson also told the Cesniks that Eli's birth

mother had received prenatal care since the early stages of her

pregnancy, and that Dawson knew the birth mother's personal

history, including the fact that the birth mother had not used

drugs during the pregnancy.

Dawson delivered Eli to the Cesniks on April 6, 1991, at an

3
The Cesniks sought a black or mixed-race child in the
interest of Caleb, who is black.
airport in Minnesota. The Cesniks soon noticed that Eli had health

problems, and they contacted Dawson by telephone and requested his

medical records.4 The agency sent the medical records a week or

two later. The records showed that Eli's birth mother had, in

fact, received no prenatal care and that she had experienced severe

preeclampsia and toxemia. Furthermore, no drug test had been

performed on Eli at the time of birth, as had been requested by the

Cesniks. A drug test performed on April 1 indicated the presence

of codeine and morphine, although that may have been the result of

medication that Eli was taking at the time. The records also

showed that Eli had intrauterine growth retardation and low Apgar

scores. The Cesniks' doctors soon diagnosed Eli with cerebral

palsy, pseudobulbar palsy, asthma, stomach problems, fetal alcohol

syndrome, facial deformities, colitis, a sleeping disorder, and

behavior problems associated with autism. The doctors suspect, as

they do with Caleb, that most or all of these conditions were

caused by exposure to drugs and alcohol during the pregnancy and by

a lack of prenatal care.

When the Cesniks asked Dawson about the discrepancy between

the medical records and what she had told them, Dawson explained,

as she did after Caleb's placement, that she had not actually

reviewed Eli's medical records before he was placed with the

Cesniks because the records had been switched at the New Beginnings

agency with those of another mother with a similar name. Dawson

also claimed that Eli's birth mother had lied about her condition

4
Just as they did at the time of Caleb's placement, the
Cesniks signed a form that stated that they had received Eli's
medical records. Again, this statement was not true.
and her use of drugs. This time, the Cesniks did not accept

Dawson's explanations.

On July 21, 1991, shortly after the Cesniks began making

inquiries about receiving an adoption assistance subsidy from the

state of Georgia for the two boys,5 Dawson met the Cesniks at their

home in Minnesota. Holding Eli in her arms, Dawson told the

Cesniks that she could withhold her consent to the Cesniks'

adoption of the boy if there was any further discussion of his

medical condition or if the Cesniks did not keep quiet about what

had happened. After this incident, the Cesniks had no further

contact with Dawson. The adoption of Eli became final on September

26, 1991.

In August of 1992, the Cesniks made a formal complaint to the

Georgia Department of Human Resources about the manner in which New

Beginnings handled the placements of Caleb and Eli. The state

agency investigated, found various deficiencies in New Beginnings'

adoption procedures, and required the agency to take corrective

action.

II.

On December 9, 1993, the Cesniks filed a complaint in the

United States District Court for the Middle District of Georgia

against the Edgewood Baptist Church, Andy Merritt (the associate

pastor of Edgewood Baptist Church who had supervisory authority

over New Beginnings), Phoebe Dawson (the executive director of New

5
The Georgia Department of Human Resources provides
federally subsidized adoption assistance payments for children
with "special needs," including mental and physical disabilities.
See Social Security Act of 1935, 42 U.S.C. § 673 (1994).
Beginnings), and Mary Ellen Slaughter Winton (the social case

worker hired by New Beginnings to work with Eli's birth mother

during her pregnancy). The complaint consists of three counts,

which are preceded by ninety-nine numbered paragraphs of factual

recitations that are incorporated by reference into each of the

three counts. In addition, count two incorporates all of the

allegations—including the causes of action—of count one, and count

three, in turn, incorporates all of the allegations—including the

causes of action—of counts one and two.

The complaint is the sort of "shotgun" notice pleading we

encountered in Anderson v. District Bd. of Trustees, 77 F.3d 364,

366-67 (11th Cir.1996), and in scores of other cases—both reported

and unreported—that have come before this court.6 It was framed in

complete disregard of the principle that separate, discrete causes

of action should be plead in separate counts. Anderson, 77 F.3d at

366. Count one, for example, which is labeled "Wrongful Placement

and Adoption," purports to plead at least nine discrete theories of

recovery. After alleging that the Cesniks were induced by the

appellees' misrepresentations to adopt Caleb and Eli, the count

states the following:

This count of the Complaint encompassed by the claim of
"Wrongful Placement and Adoption" and sounding in tort law,
includes but is not limited to the common law torts of
negligent breach of duty; negligent hiring, training,
supervision, discipline and retention of personnel;

6
See, e.g., Fikes v. City of Daphne, 79 F.3d 1079, 1082-83
(11th Cir.1996); Beckwith v. City of Daytona Beach Shores, 58
F.3d 1554, 1567 (11th Cir.1995); Pelletier v. Zweifel, 921 F.2d
1465, 1517-18 (11th Cir.), cert. denied, 502 U.S. 855, 112 S.Ct.
167, 116 L.Ed.2d 131 (1991); T.D.S. Inc. v. Shelby Mut. Ins.
Co., 760 F.2d 1520, 1543-44 n. 14 (11th Cir.1985) (Tjoflat, J.,
dissenting).
 negligence per se; breach of fiduciary relationship;
misrepresentation; fraud in the inducement and the act;
undue influence; duress; and intentional infliction of
emotional distress.

Nowhere in count one do the Cesniks set forth any of the elements

of these separate causes of action or the facts underpinning them.

Rather, a reader of the pleading must discern these things for

himself.

Count two is labeled "Breach of Contract." The count alleges

that in 1989 and again in 1991 the Cesniks and New Beginnings

entered into a contract for the placement of a healthy baby. Count

two does not, however, indicate whether the contract was reduced to

writing, nor does it recite the provision(s) of the contract that

New Beginnings breached. 7 All that is alleged is that "the

defendants breached their contractual agreement with the plaintiffs

for the placement and adoption of the plaintiffs' sons Caleb and

Eli."

Count two also presents a claim for fraud with the following

allegation: "The defendants fraudulently took monies for the

placement of the plaintiffs' sons Caleb and Eli which were not

earned, were for services not provided, were for expenses not

incurred, and/or were not paid to the parties for whom the Cesniks

were billed." In addition, of course, by incorporating all of the

allegations of count one, count two alleges all of the other tort

claims alleged in count one.

Count three is labeled "Federal and State Conspiracy." As we

7
Count two seeks to hold the individual defendants, as well
as the church, liable for breaching a contract as to which the
individual defendants are not parties.
explain below, count three may be alleging five discrete causes of

action: three federal claims and two state claims. Count three

alleges the following (with respect to both the Cesniks' federal

and state claims):

All defendants ... came to a mutual understanding to try
to accomplish a common and unlawful plan, namely to engage in
a "pattern of racketeering activity."

. . . . .

At the time the defendants knowingly and willingly agreed
to join such a conspiracy, they did so with the specific
intent to participate in at least two (2) of the predicate
mail fraud and wire fraud offenses.

Defendants knowingly and wilfully used the mails for
communication and telephones for conversations in Interstate
Commerce or caused to be transmitted by mail or wire in
Interstate Commerce communications for the purpose of
executing their scheme to defraud. 18 U.S.C. § 1341 and 1343.

Said conspiracy is actionable under 18 U.S.C. § 1962 et
seq. and O.C.G.A. § 16-4-1 et seq.

Under the Racketeer Influenced and Corrupt Organizations Act

("RICO"), 18 U.S.C. §§ 1961-1968 (1994) (as added by the Organized

Crime Control Act of 1970, Pub.L. No. 91-452, § 901(a), 84 Stat.

922, 941-48), it is illegal for persons to

engage in, or aid and abet another to engage in, a pattern of
racketeering activity if they also do the following: invest
income derived from the pattern of racketeering activity in
the operation of an enterprise engaged in interstate commerce
(section 1962(a)); acquire or maintain, through the pattern
of racketeering activity, any interest in or control over such
an enterprise (section 1962(b)); or conduct, or participate
in the conduct of, the affairs of such an enterprise through
a pattern of racketeering activity (section 1962(c)). Section
1962(d) makes it a crime to conspire to violate sections
1962(a), (b), or (c).

Pelletier v. Zweifel, 921 F.2d 1465, 1495-96 (11th Cir.), cert.
denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991).8 RICO

provides a civil remedy for the victims of these section 1962

crimes, as follows: "Any person injured in his business or

property by reason of a violation of [18 U.S.C. § 1962] may sue

therefor in any appropriate United States district court and shall

recover threefold the damages he sustains and the cost of the suit,

including a reasonable attorney's fee." 18 U.S.C. § 1964(c).9

Count three alleges that the defendants were engaged in a

"conspiracy," presumably in violation of 18 U.S.C. § 1962(d). To

state a claim for damages suffered by reason of a violation of

section 1962(d), a plaintiff must allege that the defendants

conspired to violate one of the substantive provisions of 18 U.S.C.

§ 1962(a)-(c). The complaint nowhere indicates, however, which

crime the defendants allegedly conspired to commit. We are left to

speculate whether the Cesniks seek to state a claim for damages by

reason of a conspiracy to violate section 1962(a) or (b) or (c).10

Finally, to state a RICO claim a plaintiff must describe the

8
An act of "racketeering," commonly called a predicate act,
is defined to include "any act which is indictable under ... [18
U.S.C. §] 1341 (relating to mail fraud), [and 18 U.S.C. §] 1343
(relating to wire fraud)." 18 U.S.C. § 1961(1)(B). The elements
of mail and wire fraud are identical. "Mail or wire fraud occurs
when a person (1) intentionally participates in a scheme to
defraud another of money or property and (2) uses the mails or
wires in furtherance of that scheme." Pelletier, 921 F.2d at
1498.
9
Count three makes no reference to 18 U.S.C. § 1964(c). We
treat the Cesniks' allegation that the conspiracy is "actionable
under 18 U.S.C. § 1962 et seq." as stating a claim for relief
under section 1964(c).
10
In their brief to the district court in opposition to the
appellees' joint motion for summary judgement, the Cesniks did
not inform the court which sections the appellees allegedly
conspired to violate.
"enterprise" involved in the defendant's scheme, for without an

enterprise there can be no RICO violation. See 18 U.S.C. §

1962(a)-(c). The word "enterprise" appears nowhere in the

complaint.11
Count three also possibly asserts two claims for relief under

the Georgia RICO (Racketeer Influenced and Corrupt Organizations)

Act, O.C.G.A. §§ 16-14-1 to 16-14-15 (1992 & Supp.1995). Those

claims are described in the margin;12 they suffer the same

infirmities as their federal counterparts.

Despite the fact that the Cesniks' complaint, especially count

11
Nor does the word "enterprise" appear in the Cesniks'
brief in opposition to the appellees' joint motion for summary
judgment. In the section of the Cesniks' appellate brief
concerning federal RICO, the word "enterprise" appears only in a
quotation from section 1962.
12
There are two substantive criminal provisions in the
Georgia RICO statute:

(a) It is unlawful for any person, through a
pattern of racketeering activity or proceeds derived
therefrom, to acquire or maintain, directly or
indirectly, any interest in or control of any
enterprise, real property, or personal property of any
nature, including money.

(b) It is unlawful for any person employed by or
associated with any enterprise to conduct or
participate in, directly or indirectly, such enterprise
through a pattern of racketeering activity.

O.C.G.A. § 16-14-4. Like 18 U.S.C. § 1962(d), O.C.G.A. §
16-14-4(c) makes it illegal "to conspire or endeavor to
violate any of the provisions of subsection (a) or (b) of
[O.C.G.A. § 16-14-4]."

O.C.G.A. § 16-14-6(c) provides a victim of these crimes
a civil remedy in much the same fashion as does 18 U.S.C. §
1964(c). We treat the allegation in the Cesniks' complaint
that the alleged conspiracy is "actionable under ...
O.C.G.A. § 16-14-1 et seq." as stating a claim for relief
under section 16-14-6(c).
three, is so disorganized, the appellees did not move the district

court to require the Cesniks to file a more definite statement.
13
See Fed.R.Civ.Proc. 12(e). Nor did the court require one.

Instead, the appellees opted to file an answer. They admitted that

the adoptions took place, but denied liability under any of the

appellants' theories of recovery. The appellees also plead several

affirmative defenses, including that the complaint failed to state

a claim for relief and that the statute of limitations barred the

Cesniks' claims.

Following extensive discovery, the district court granted the

appellees' motion for summary judgment as to all of the Cesniks'

claims for relief. The court read the Cesniks' complaint as having

presented several tort claims, a claim for breach of contract, and

claims "under the federal and state conspiracy statutes." The

court referred to the Cesniks' common-law tort claims as claims for

"personal injury, mental and physical," claims under the "remaining

theories under the tort of wrongful adoption and placement,"14 and

a "claim for fraud."

The district court concluded that the Cesniks' common-law tort

claims were barred by the applicable two-year statute of

limitations. It concluded that the Cesniks' contract claim was

13
The court clearly had the discretion to strike, on its own
initiative, the Cesniks' complaint, and to require the Cesniks to
file a more definite statement. See Anderson, 77 F.3d at 367 n.
5.
14
In referring to the "remaining theories under the tort of
wrongful adoption and placement," we assume that the court was
referring to some or all of the tort theories described in count
one (labeled "wrongful placement and adoption" by the
appellants), which we quote in the text supra.
foreclosed because they "could have avoided" the injury they

allegedly sustained

by the use of reasonable effort after they learned of the
mental and physical conditions of the children because under
the terms of the placement agreement the Plaintiffs could
simply have ended the adoption proceedings and could have
returned the children to the Agency.

Finally, the court found no merit in the Cesniks' federal and state

RICO claims because the record contained no evidence of a

conspiracy to defraud the Cesniks or the predicate acts of mail or

wire fraud. The court said nothing regarding the Cesniks' failure

to describe the enterprise allegedly involved in the appellees'

conspiracy; nor did it indicate which substantive provision of 18

U.S.C. § 1962 the appellees were supposed to have conspired to

violate. In short, the court did not consider whether count three

of the complaint stated a claim for relief.

III.

We are satisfied that the statute of limitations bars whatever

tort claims the Cesniks may have had under Georgia common law.

Accordingly, we affirm the district court's summary disposition of

those claims. As for the Cesniks' remaining claims—the claim for

breach of contract and the claims under the federal and Georgia

RICO statutes—with a few exceptions, we are unable, on the state of

the record before us, to sustain the court's judgment. We first

consider the common-law tort claims.

A.

Although the district court did not identify all of the

Cesniks' common-law tort claims—it referred to many of them as the

"remaining theories under the tort of wrongful adoption and
placement,"15—it concluded that all of them were barred by the

two-year statute of limitations because all of the alleged tortious

acts occurred (at the latest) prior to September 26, 1991 (the date

of Eli's adoption), and the suit was not filed until December 12,

1993. See O.C.G.A. §§ 9-3-33, 9-3-96 (1982).16 The Cesniks argue,

however, that the running of the period of limitations was tolled

when Phoebe Dawson made her threat at the Cesniks' home on July 21,

1991. The Cesniks claim that after that date they were unable to

take any sort of legal action against the appellees out of fear

that the agency might take reprisals—either by withholding the

agency's consent to the adoption of Eli,17 or by making it difficult

for the Cesniks to receive an adoption subsidy from the state of

Georgia. This fear supposedly persisted from the time of the

threat until May 18, 1993, when the Georgia Department of Human

Resources notified the Cesniks that they would receive an adoption

subsidy. The Cesniks argue that the running of the period of

limitations was tolled during the twenty-seven months that they

were under the duress caused by Dawson's threat, and that therefore

15
Neither the Cesniks nor the district court cited any
authority for the proposition that Georgia recognizes a tort of
"wrongful adoption and placement," and we have found none.
16
O.C.G.A. § 9-3-96 provides that "[i]f the defendant ...
[is] guilty of a fraud by which the plaintiff has been debarred
or deterred from bringing an action, the period of limitation
shall run only from the time of the plaintiff's discovery of the
fraud." The Cesniks did not discover the fraud associated with
the placements of Caleb and Eli until the boys' medical records
were sent to them by mail. Thus, in the case of Caleb, the
period of limitations began running in May of 1990; in the case
of Eli, in April of 1991.
17
Caleb's adoption had been final for a year before July 21,
1991, the day that Dawson made her threat. Eli's adoption,
however, was not final until September 26, 1991.
their claim was filed within the limitations period. 18 We do not

agree.

The record shows that shortly after the Cesniks began making

efforts to get a state adoption subsidy, Phoebe Dawson flew to

Minnesota and met the Cesniks in their home. Dawson asked to hold

Eli, and, once the child was in her arms, she is alleged to have

stated something to this effect: "This child is in my custody. I

can withhold [our] consent to adopt if there is any more discussion

of [Eli] being handicapped or drug exposed [or if you do] not keep

quiet about what ha[s] happened." Dawson then handed Eli back and

left the home. Dawson and the Cesniks had no further contact.

The Cesniks claim that this threat put them in fear of losing

Eli if they took any action against the agency. But this fear

could have been reasonable only until August 8, 1991 (eighteen days

after the threat), when New Beginnings gave its consent to Eli's

adoption. The Cesniks claim that after Eli's adoption they feared

that the agency might block their attempts to receive an adoption

subsidy for both Caleb and Eli from the state of Georgia. But

Dawson made no such threat, and it is not clear that Dawson or New

Beginnings had any influence in this matter whatsoever. Moreover,

the fear of retaliation by New Beginnings was evidently not so

great as to keep the Cesniks from filing an administrative

18
The Cesniks claim that the statute ran for 21 months in
the case of Caleb (from May of 1990, when the fraud was
discovered, to July 21, 1991, when Dawson made her threat, and
again from May of 1993, when the adoption subsidy was approved,
to December 9, 1993, when the claim was filed in district court),
and for 91/2 months in the case of Eli (from April of 1991, when
the fraud was discovered, to July 21, 1991, and again, as with
Caleb, from May of 1993, to December 9, 1993). The period of
limitations is 24 months.
complaint against the adoption agency in August of 1992.19 In sum,

we find that there was no reasonable basis for a claim of duress

after August 8, 1991, which was more than two years prior to the

filing of the lawsuit.20 The district court was thus correct in

deciding that the statute of limitations barred the appellants'

common-law tort claims.

B.

The district court rejected the Cesniks' contract claim on

the ground that they could have mitigated their damages in full by

returning the children to New Beginnings, as provided in the

placement agreement. The problem with this holding is that neither

the complaint nor the court describes the placement agreement. We

19
The Cesniks also offer no explanation for why they waited
another seven months after the approval of the adoption subsidy
to sue the agency.
20
We do not mean to suggest that a reasonable claim of
duress would necessarily have tolled the running of the statute
of limitations in this case. Duress is not one of the enumerated
conditions that tolls the statute of limitations under Georgia
law. See O.C.G.A. §§ 9-3-90 to 9-3-97.1 (1982 & Supp.1995).
Moreover, we find no authority for the proposition that duress,
as a matter of Georgia common law or equity, can toll the statute
of limitations for a cause of action that is not itself based on
a claim of duress. Indeed, what little authority we have found
on the subject suggests that such a proposition could be
maintained in very few states. See Cooper v. Fidelity-Phila.
Trust Co., 201 F.Supp. 168, 170 (E.D.Pa.1962) ("There is little
authority for the proposition that "duress' tolls the running of
the statute of limitation."); Baratta v. Kozlowski, 94 A.D.2d
454, 464 N.Y.S.2d 803, 807 (1983) ("[R]eluctance [of courts] to
recognize duress as a toll [may lie] in the undesirability of a
rule that turns on the reasonableness of reliance upon threats of
physical or economic harm, the ease of fabrication of such
threats, or simply in the judicial reluctance to create an
entirely new defense to the [s]tatute of [l]imitations.")
(citations omitted); see also Annotation, Duress or Undue
Influence as Tolling or Suspending Statute of Limitations, 121
A.L.R. 1294 (1939); 51 Am.Jur.2d. Limitation of Actions § 177
(1970); 54 C.J.S. Limitations of Actions § 92 (1987).
will assume for sake of argument, however, that New Beginnings

breached the placement agreement when it misrepresented the

condition of the boys' health. We further assume that upon the

agency's breach the Cesniks could have cancelled the agreement with

New Beginnings and returned the children to the agency. The

question then becomes whether the Cesniks were required to do so,

or else suffer the consequences.

The situation is analogous to a seller misrepresenting the

quality of goods being sold to a buyer. Ordinarily, a buyer of

goods that are not of the quality represented has two options. He

can rescind the transaction by returning the goods to the seller

and demanding a return of the purchase price, or he can stand on

the transaction and sue for damages—measured by the difference in

value between the goods as represented and the goods as received.

Here, the Cesniks kept the children and seek to recover the

expenses they will incur in excess of those they would have

incurred had the children not been disabled.

The district court held, in effect, that the Cesniks did not

have the option of standing on the contract and suing for damages.

Rather, according to the court, the Cesniks had but one remedy:

rescission. The court cited no authority for its holding and the

appellees have likewise cited none; nor can we find any.21 Under

21
The appellees have cited statutes and cases that stand for
the proposition that, under the law of Georgia, a claimant has a
duty to mitigate his damages. This proposition, which is well
founded in the common law, speaks to the issue of damages; it
does not address the question whether the claimant can state a
cause of action for breach of contract. Assuming that, on
remand, the Cesniks can state a claim for breach of contract, the
extent to which they may have failed to mitigate their damages
will be a question to be resolved in litigating the issue of
the circumstances, we cannot sustain the court's summary rejection

of the Cesniks' claim for breach of contract against the Edgewood

Baptist Church. Because there is nothing in the record, however,

that indicates that appellees Dawson, Merritt, and Winton were

parties to the Cesniks' contract with the church, we affirm the

district court's disposition of the breach of contract claim

brought against them individually.

C.

As we have pointed out, the pleading of the Cesniks' federal

and state RICO claims, in count three of their complaint, is

woefully deficient. Count three does not cite the crimes (under 18

U.S.C. § 1962 and O.C.G.A. § 16-14-4) that the defendants allegedly

conspired to commit. Nor does the pleading describe the

"enterprise" involved in the conspiracy.22 If ever there was a need

for a more definite statement, it was with respect to count three.

The district court did not reject these claims because they

were inadequately plead, however. Rather, the court concluded that

the Cesniks could not make out a federal or state RICO claim

because they had presented no evidence of (1) a conspiracy or (2)

predicate acts of mail or wire fraud. We are convinced that, with

the exception of appellee Winton, the court erred on these two

damages.
22
The appellees did not base their joint motion for summary
judgment on this deficiency, however, and the district court did
not cite it as a ground for granting summary judgment. We
therefore do not consider whether we should exercise our
authority to affirm a district court's judgment dismissing a case
on a ground not relied upon by the district court—in this
instance, on the ground that the appellants failed to articulate
an indispensable element of a federal or state RICO claim.
points.

With respect to the first point, a reasonable jury could find

from the evidence in the record that defendant Dawson

misrepresented the boys' health for the purpose of inducing the

Cesniks to accept them for adoption, that appellee Merritt

participated in or was aware of the scheme,23 and that their conduct

implicated the church.24 As for the second point, the facts we have

recited, in part II supra, establish (for purposes of summary

judgment) a scheme to defraud and several uses of the mails and

wires in furtherance of that scheme.25

IV.

In conclusion, we affirm the district court's judgment

dismissing count one of the appellants' complaint. As to count

two, we affirm the court's judgment in favor of appellees Dawson,

Merritt, and Winton, but vacate its judgment in favor of the church

and remand for further proceedings. With respect to count three,

23
In contrast, the appellants have pointed to no evidence in
the record, and we find none, sufficient to permit a reasonable
jury to find that appellee Winton either participated in or was
aware of the alleged conspiracy among Dawson, Merritt, and the
church to defraud the Cesniks. (Winton did not become a employee
of New Beginnings until after Caleb's placement; she is alleged
to have participated in Dawson's scheme only with respect to
Eli.) We thus affirm the district court's granting of summary
judgment in favor of Winton.
24
We express no view as to whether, under 18 U.S.C. §
1962(d), a corporation can be held to have conspired with one of
its employees.
25
The statute of limitations for a RICO claim is four years
under the federal statute, see Agency Holding Corp. v. Malley-
Duff & Assocs., Inc., 483 U.S. 143, 156, 107 S.Ct. 2759, 2767, 97
L.Ed.2d 121 (1987), and five years under Georgia RICO, see
O.C.G.A. § 16-14-8. The record discloses uses of the mail and
the telephone within four years of the filing of this law suit.
we affirm the court's judgment in favor of appellee Winton, but

vacate its judgment in favor of the remaining appellees. As to

these appellees, count three is remanded for further proceedings.

Because the allegations of counts two and three are so

muddled, we instruct the district court, before proceeding further

in this case, to require the appellants to replead counts two and

three of their complaint. With respect to count two, the

appellants shall allege only a breach of contract—assuming that

they wish to pursue such a claim. If the contract on which their

claim is based is in writing, the appellants shall either attach

the writing to the complaint, or recite the provision(s) of the

contract that they contend give rise to their action for breach.

In repleading count three, the appellants shall state only one

claim for relief. If they wish to state a claim under the federal

RICO statute, they shall indicate the statutory provision(s) giving

rise to such claim and shall also describe the enterprise involved

in the RICO violation. If the appellants wish to state a claim

under the Georgia RICO statute, they shall do so in a new count.

More need not be said.

SO ORDERED.