Fair Housing Center of the Greater Palm Beaches, Inc. v. Shutters Condominium Ass'n

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16184 ELEVENTH CIRCUIT
JULY 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 08-81566-CV-WPD

FAIR HOUSING CENTER OF
THE GREATER PALM BEACHES, INC.,

Plaintiff-Appellant,

versus

THE SHUTTERS CONDOMINIUM
ASSOCIATION, INC.,
CAROL RAVANTTI LALLA,
and,
MILDRED MINER,

Defendants-Appellees,

TERESA B. SALTER,

Defendant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 29, 2010)
Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

The Fair Housing Center of the Greater Palm Beaches appeals the denial of

its motion for a new trial and for judgment as a matter of law. Fed. R. Civ. 59(a),

50(b). The Center complained that The Shutters Condominium Association and

Mildred Miner had violated two provisions of the Fair Housing Act, 42 U.S.C. §§

3604(a), 3604(c), but at trial the jury returned a verdict in favor of The Shutters

Association and Miner. The district court denied the post-trial motions of the

Center on the ground that the jury was entitled to discredit testimony that the

Center had been damaged by the activities of The Shutters Association and Miner.

Because the record supports the jury’s verdict, we affirm.

In November 2006, one of three employees at the Center, a non-profit

organization working to eliminate discrimination in access to housing in the

Greater Palm Beaches area of Florida, discovered on the “craigslist” website an

advertisement offering for rent a condominium in The Shutters complex. The

advertisement included the statement, “Sorry no kids or pets.” The Center later

learned that Miner owned the condominium and the advertisement had been posted

on the Internet on November 7, 2006, by Miner’s daughter, Teresa Salter.

The Center obtained over the Internet copies of an amendment to the

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Declaration of Condominium recorded in 1986 by The Shutters Association that

contained two provisions restricting residency by children. Section F of Article XI

stated, “Age limit of children permitted with parents as owners, 18 years of age.”

Section G of Article XI permitted the rental of “entire apartments” to “one family

consisting of the father, mother and adult children, if any” and also stated there

could be “no children.”

The Center concluded that the advertisement and restrictions in the

Declaration violated the Fair Housing Act, which was revised in 1988 to prohibit

discrimination in access to housing based on “familial status,” 42 U.S.C. §

3602(k). The Center filed charges with Housing and Urban Development and the

Palm Beach Office of Equal Opportunity about discrimination based on familial

status by The Shutters Association, its president, Carol Ravantti Lalla, Miner, and

Salter. The Center offered to settle the charges if, among other conditions,

members of The Shutters Association would complete an education program that

cost $5000 per participant, but the dispute was not resolved. On May 8, 2007, the

Office of Equal Opportunity found reasonable grounds that the defendants had

violated the Fair Housing Act.

In August 2008, the Center filed an amended complaint that The Shutters

Association, Ravantti Lalla, Miner, and Salter had violated the Fair Housing Act in

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four ways: making housing unavailable to potential lessees because of their

familial status, 42 U.S.C. § 3604(a); discriminating in the sale or rental of housing

because of potential lessees’ familial status, id. § 3604(b); advertising in a manner

that discriminates against potential lessees based on their familial status, id. §

3604(c); and interfering “in the exercise or enjoyment of . . . any right granted or

protected by section . . . 3604,” id. § 3617. The Center complained that it “[had]

and continue[d] to spend substantial time and resources concerning The Shutters

Complaint which [had] impaired its mission to insure that the Greater Palm

Beaches is free from discriminatory housing practices,” and the Center listed four

injuries it had suffered because of the defendants’ alleged discrimination. Before

trial, the district court dismissed without prejudice the complaint against Salter.

The Shutters Association later amended its Declaration and removed all language

about prohibiting the rental and sale of its condominium units to families with

children.

In July 2009, the Center, The Shutters Association, and Ravantti Lalla

moved for summary judgment. The district court denied the motion of the Center,

but granted in part the motion of The Shutters Association and Ravantti Lalla. The

district court found that the Center had failed to “put forth any evidence that The

Shutters” Association or Ravantti Lalla had “discriminate[d] against any person”

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about the “sale or rental of a dwelling, or in the provision of services or facilities in

connection therewith, because of . . . familial status,” 42 U.S.C. § 3604(b), and

dismissed that ground of the complaint. The district court rejected the argument

that the Center lacked standing based, in part, on the declaration of the Vice

President of the Center, Bobbie Fletcher, that “as a result of The Shutters’ alleged

discrimination, [the Center] began to divert its resources from other activities in

order to ‘identify and counteract Defendants’ unlawful housing practices.’” The

district court also found that there was a factual dispute about whether Miner had

published her discriminatory advertisement because of the amended Declaration

recorded by The Shutters Association in 1986. See 42 U.S.C. §§ 3604(a), 3604(c),

3617.

At trial, the Center presented testimony from Fletcher about the activities of

the Center and its damages. The Center also called Miner to testify about the

advertisement her daughter had posted on the craigslist website. After the Center

rested its case, The Shutters Association and Ravantti Lalla moved for judgment as

a matter of law. See Fed. R. Civ. P. 50(a). Miner also moved for judgment in her

favor. The district court entered judgment in favor of Ravantti Lalla, but the

district court denied the motions of The Shutters Association and Miner.

A jury returned verdicts in favor of The Shutters Association and Miner.

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The jury found that neither defendant had made housing unavailable to potential

lessees because of their familial status, 42 U.S.C. § 3604(a); advertised or caused

the advertising of housing that indicated a limitation or discrimination based on

familial status, id. § 3604(c); or interfered “in the exercise or enjoyment of . . . any

right granted or protected by section . . . 3604,” id. § 3617. The district court

entered judgment in favor of The Shutters Association and Miner.

The Center moved for a new trial, Fed. R. Civ. P. 59(a), and for judgment as

a matter of law, Fed. R. Civ. P. 50(b), on the ground that the verdicts under

sections 3604(a) and (c) were contrary to the weight of the evidence, but the

district court denied the motions. The district court found that the jury was entitled

to reject the testimony of Fletcher about the damages incurred by the Center:

The jury was entitled to reject the testimony of Bobby Ann Fletcher as
to the existence of damages and as to any causal connection between
the defendants’ activities and the alleged damages. It was within the
jury’s province to weigh the credibility of witnesses, particularly those
who were demanding high fees for lengthy “educational” seminars as
a condition of a settlement.

The district court also expressed its “agree[ment] with the jury’s verdict” and ruled

that, “even if [the Center] had made a Rule 50 motion, this Court would have

exercised discretion and denied the request for judgment as a matter of law.”

Our scope of review in this appeal is narrow: We review the denial of a

motion for a new trial to determine “whether there was an absolute absence of

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evidence to support the jury’s verdict.” Wilson v. Attaway, 757 F.2d 1227, 1237

n.3 (11th Cir. 1985) (internal quotation marks omitted). Because we may not

examine “[t]he sufficiency of the evidence supporting a jury verdict” in the

absence of a timely motion for judgment as a matter of law by the Center, “our

inquiry is limited to whether there was any evidence to support the jury’s verdict,

irrespective of its sufficiency, or whether plain error was noted which, if not

noticed, would result in a ‘manifest miscarriage of justice.’” Id. at 1237. In our

review, we may not disturb any possible findings of the jury about conflicts and

inferences to be drawn from the evidence or the credibility of witnesses. See

Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.

2001).

The Center challenges one of the three verdicts rendered by the jury; the

Center challenges the decision that it was not injured by the publication of an

advertisement by Miner about rules of The Shutters Association that discriminated

against potential lessees based on their familial status, 42 U.S.C. § 3604(c). The

Center does not challenge the decision that neither defendant had made unavailable

housing based on a person’s familial status, id. § 3604(a). “[O]ur well established

rule is that issues and contentions not timely raised in the briefs are deemed

abandoned.” United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001).

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 We cannot conclude as a matter of law that there is no evidence to support

the jury’s verdict. The jury may have concluded that the Center failed to establish

a causal connection between its alleged damages and the discriminatory advertising

by Miner. See Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., 236 F.3d 629,

639 (11th Cir. 2000). The Center complained about injuries it suffered as a result

of the advertisement, but the Center offered scant evidence about its damages.

Although the Center complained that the advertisement “interfered with [its]

efforts and programs” and resulted in the “devot[ion of] scarce resources to

identify and counteract Defendants’ unlawful housing practices and . . . diver[sion

of] those same resources from its education, counseling, and referral services,” the

testimony did not wholly support that complaint. Bobbie Fletcher testified that the

Center incurred $15,000 in “out-of-pocket expenses” while “monitor[ing] each

month” whether The Shutters Association had amended its Declaration, but

Fletcher did not testify whether or how the purported expenditure interfered with

or diverted resources from programs offered by the Center. Furthermore, the jury

might not have found Fletcher’s testimony credible. According to Fletcher, the

Center monitored the Declaration over the Internet for about 20 months, and a jury

reasonably could have found it incredible the monitoring cost $750 a month.

Fletcher testified that the Center maintained “a precise time report as to the time

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spent” totaling the $15,000, but the Center did not introduce the report into

evidence. Fletcher also gave inconsistent statements about when the Center

incurred the expenses. Fletcher first testified that the Center incurred its expenses

“from the time [it] discovered” the advertisement, but Fletcher later testified that

“[a]t the time [the Center] filed the complaint there was no money involved.”

The testimony also did not support the complaint of the Center that the

discriminatory advertising “interfered with the rights of Plaintiff Fair Housing

Center’s constituents” and “frustrated” the Center’s “mission.” Fletcher admitted

that “no one was turned away” as a result of the advertisement nor was she aware

that anyone had even “showed an interest in the apartment.” Likewise, Miner

testified that “[n]ot one person” responded to her advertisement about her

condominium, even after she removed the “no children” language in the

advertisement.

We AFFIRM the denial of the Center’s motion for a new trial and for

judgment as a matter of law.

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