UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60174
Summary Calendar
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DELORES TOWNSEND; JAMES TOWNSEND,
Plaintiffs-Appellees,
versus
AMERICAN BONDING COMPANY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(4:93-CV-121-LN)
_________________________________________________________________
October 26, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:1
American Bonding Company appeals the judgment, on a jury
verdict, awarding compensatory and punitive damages to Delores and
James Townsend. We AFFIRM.
I.
On February 5, 1993, James Townsend was arrested by the Newton
County, Mississippi, sheriff's department on a fugitive warrant
from Kentucky, charging him with theft by deception (writing a
1
Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that rule, the court has determined that this opinion
should not be published.
check with insufficient funds).2 Subsequent to the arrest, the
sheriff's department learned that a Wisconsin warrant for felony
non-payment of child support was pending against Mr. Townsend.
Bond was set at $5,000 on each charge.
With the assistance of his wife, Delores, Townsend purchased
two bail bonds from American Bonding Company (ABC), through its
local agent, Hampton Gardner. Gardner required the Townsends to
pledge as collateral several items of farm equipment and a 1977
Jeep. The collateral instrument provided that the property was to
remain in the Townsends' custody until the bail bonds were
forfeited, and that the property was not to be removed from the
Townsends' property in Union, Mississippi. After being released
from jail, Mr. Townsend continued operating his swimming pool
restoration and construction business, which involved travel to
several job sites outside the state. As requested by Gardner, Mrs.
Townsend periodically reported to him.
On April 16, the sheriff received from the Governor of
Mississippi an extradition warrant to pick up Mr. Townsend for
return to Kentucky. Gardner and the sheriff contacted Mrs.
Townsend and asked her to have her husband report. Mr. Townsend,
who was in Texas at the time, spoke with Gardner by telephone on
April 22. Gardner told him that he wanted him to come in to sign
some papers, but did not mention the warrant.
2
At the trial of this action, Mr. Townsend testified that the
check was in payment for repairs on a truck, but that the repairs
were not done properly, so he did not deposit the funds to cover
the check.
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On April 26, the sheriff notified Mrs. Townsend that her
husband must report by 3:00 p.m. on April 27. Mrs. Townsend was
unable to contact her husband at that time, because he was
traveling. When Mr. Townsend did not report, the sheriff executed
a fugitive warrant on April 28. That same day, despite the fact
that the bonds had not been forfeited, Gardner went to the
Townsends' farm to pick up the equipment that had been pledged as
security for the bail bonds. While at the farm, he noticed that
the 1977 Jeep was missing.
Later that same day (April 28), Gardner signed two affidavits
in Newton County Justice Court, accusing Mrs. Townsend both of
being an accessory after the fact, for concealing Mr. Townsend's
whereabouts, and of removing, concealing, or disposing of personal
property (the Jeep) subject to a lien. Mrs. Townsend was arrested
that afternoon, and spent two days in the Newton city jail before
being able to post bond. Gardner was present when Mrs. Townsend
was arrested; he told her that she would not have gotten into
trouble if she had cooperated. The arrest was reported in a
publication having general circulation in Mrs. Townsend's county of
residence.
On May 3, the Kentucky criminal charge against Mr. Townsend
was dismissed, after he made restitution for the check; the
Wisconsin charge was dismissed on June 15, after he settled the
child support arrearage. On May 14, ABC's attorney requested that
Gardner dismiss the charges against Mrs. Townsend; and they were
dismissed on May 25.
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For two weeks after he picked up the Townsends' farm
equipment, Gardner took bids on it from the public. On May 21, the
Townsends filed a complaint in replevin in an attempt to regain
possession of the equipment. On June 23, Mrs. Townsend furnished
Gardner with written proof that both charges against Mr. Townsend
had been dismissed; but Gardner did not allow them to retrieve
their equipment until August 16.
The Townsends filed suit against ABC on November 4. Mrs.
Townsend asserted separate claims, including for malicious
prosecution and abuse of process. Mr. and Mrs. Townsend also
asserted claims for trespass and for bad faith breach of contract
for taking, refusing to return, and damaging their personal
property. The jury awarded compensatory damages of $55,000 to Mrs.
Townsend for malicious prosecution and abuse of process, and of
$5,185 to Mr. and Mrs. Townsend for property damages and costs; and
punitive damages of $83,000.
II.
ABC challenges the denial of a peremptory challenge, and the
evidentiary support for the damage awards.
A.
Concerning the peremptory challenges issue, and as the
Townsends note, ABC failed to order a transcript of voir dire;
consequently, we are unable to review this contention. See FED. R.
APP. P. 10(b)(2) ("If the appellant intends to urge on appeal that
a finding or conclusion is unsupported by the evidence or is
contrary to the evidence, the appellant shall include in the record
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a transcript of all evidence relevant to such finding or
conclusion."); United States v. Hinojosa, 958 F.2d 624, 633 ("to
maintain the integrity of the rules and the appellate process, we
properly decline to review controversies in which the record is not
supplied to us").
In its reply brief, ABC states that "for whatever reason", the
voir dire was not transcribed, suggesting that perhaps "the record
was never there".3 But the transcript order form, signed by ABC's
attorney, contains no mark in the box next to "Voir dire". It is
therefore apparent that the record contains no transcript of the
voir dire simply because ABC did not order one.
In any event, ABC asserts that this issue was preserved for
appeal because it was raised in its motion for new trial.
Paragraph 1 of that motion asserts that the district court "erred
in failing to excuse Juror Number 11 from the panel when the
defendant exercised a peremptory as to said Juror". The order
denying the motion does not address that contention specifically,
stating only that the motion "is not well taken and should be
denied". The motion and order do not provide an adequate basis for
review of the alleged denial of the peremptory challenge.
3
We reject ABC's suggestion that FED. R. APP. P. 10(c) (setting
forth the procedure to be used if no report of the evidence or
proceedings at a trial was made, or if a transcript is unavailable)
is applicable. ABC has not complied with the procedures set forth
in Rule 10(c) (requiring appellant to prepare a written statement
to be served on the appellee, and requiring the statement and any
objections or proposed amendments to be submitted to the district
court). Moreover, there is no reason to believe that the
transcript is unavailable; the record reflects only that ABC did
not order transcription of the voir dire.
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In sum, without a transcript of the voir dire, we are unable
to discern the district court's reasons for the denial and,
therefore, cannot determine whether it abused its discretion.
B.
Next, ABC contends that the two compensatory damage awards are
speculative and without basis in law or fact. "Absent an error of
law, the reviewing court will sustain the amount of damages awarded
by the fact finder, unless the amount is clearly erroneous or so
gross or inadequate as to be contrary to right reason." Sockwell
v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994).
1.
Without elaboration or explanation, ABC maintains that the
evidence would support, at most, an award of $3,000 for property
damage and costs, not the $5,185 awarded. We will not consider
issues not properly briefed on appeal. See, e.g., Abbott v. Equity
Group, Inc., 2 F.3d 613, 627 n.50 (5th Cir. 1993), cert. denied,
___ U.S. ___, 114 S. Ct. 1219 (1994).4
4
Even assuming ABC properly briefed its challenge to the
property damage award, the record contains ample evidence to
support the award. Gardner admitted that after repossessing the
Townsends' farm equipment, he left it out in the open, where it was
rained on and weathered. Mr. Townsend testified that the wooden
hoppers on a planter had deteriorated because of water damage and
would have to be replaced; that he incurred expenses of $250-300 to
move the equipment back to his farm; and that the Townsends had
hired someone to prepare 50 acres of land for planting, but were
unable to plant because Gardner had their equipment during planting
season. And, there was evidence that Mrs. Townsend paid $1,225 for
a bond to secure her release from jail, and that the Townsends paid
an attorney $1,000 plus court costs for representing them in the
replevin action.
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2.
ABC asserts that the award of $55,000 to Mrs. Townsend is
speculative because she sought no medical advice or treatment and
offered no medical proof. It claims that there can be no recovery
for mental distress under Mississippi law in the absence of
physical injury. But, the Mississippi Supreme Court has stated
that such an "out-moded view ... has never been appropriate in the
context of the tort of malicious prosecution". Royal Oil Co., Inc.
v. Wells, 500 So. 2d 439, 448 (Miss. 1986).
The very nature of the tort is such that, when
committed, it will inflict mental anguish and
emotional distress upon the Plaintiff. This is one
of the major elements of injury or loss ... the
victim of a malicious prosecution will suffer and
for which she will be entitled to redress.
Furthermore, the nature of the tort is such that it
will seldom produce an impact or physical injury.
Id.
Mrs. Townsend testified that she had never spent any time in
jail before her arrest, and had never been convicted of a crime.
She testified that the conditions in jail as "unbearable"; that she
was placed in a six-by-six-by-eight-foot jail cell for two days;
that she was told not to use the bathroom until she had cleaned it,
but was unable to obtain cleaning supplies until the morning after
her arrest; that her mattress had no sheets, pillow, or blankets;
that she was unable to sleep while in jail and still had trouble
sleeping for three to four weeks after she was released; that the
food was "bad" and her stomach was upset so she could not eat; that
for a week following her arrest, she had difficulty eating without
becoming nauseated; that she still had problems with nausea at the
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time of trial (January 1995, almost two years after her arrest);
and that she was afraid to take a shower while in jail. Mrs.
Townsend testified also that she becomes emotional whenever she
thinks or talks about the incident, but she did not seek medical or
psychiatric treatment because she thought she could work through
her problems; and that she was very concerned about her arrest
being published, and worried that her reputation would be damaged.
This evidence sufficiently supports the compensatory damages
awarded to Mrs. Townsend.
C.
For its last point, ABC contends that the district court erred
by instructing the jury on punitive damages, claiming there was no
factual or legal basis for such an award, so the award must have
been based on bias and passion. Under Mississippi law, "[p]unitive
damages are properly allowed where the tort complained of was
malicious, wanton, wilful, or capricious". C & C Trucking Co. v.
Smith, 612 So. 2d 1092, 1102 (Miss. 1992). "The same factual
evidence of malice ... undergird[ing] the jury's positive finding
of that element of the tort of malicious prosecution should at
least suffice to submit the question of a punitive damage
assessment to the jury." Royal Oil Co., 500 So. 2d at 450.
1.
ABC claims that the Townsends failed to prove bad faith
necessary for an award of punitive damages. Under Mississippi law,
"a finding of malice will give rise to an assessment of punitive
damages". Id. The term "malice" in a malicious prosecution action
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"is used in an artificial and legal sense and is applied to
prosecutions instituted primarily for a purpose other than that of
bringing an offender to justice". C & C Trucking, 612 So. 2d at
1100. Malice "may be proved by circumstantial evidence or the jury
may infer malice from the facts of the case ... [or] from a finding
that the defendant acted in reckless disregard of another person's
rights". Id. "Moreover, absence of probable cause for the
prosecution is circumstantial evidence of malice." Id. "Probable
cause requires the concurrence of an honest belief in the guilt of
the person accused and reasonable grounds for such belief." Id.
"One is as essential as the other." Royal Oil Co., 500 So. 2d at
443.
There was evidence that Gardner acted without probable cause
and in reckless disregard for Mrs. Townsend's rights. He admitted
that the accessory-after-the-fact charge against her was based upon
his own assumptions and speculation, because "[t]hat's all I had to
go off of at the time". Gardner admitted also that he had no
knowledge of either who removed the Jeep from the Townsends'
property, or that Mrs. Townsend had secreted or concealed it, and
that he did not know whether Mrs. Townsend had disposed of it. Mr.
Townsend testified that he used the Jeep to transport equipment to
a job site and intended to return it to the farm, and that Mrs.
Townsend had nothing to do with his decision. Mrs. Townsend
testified that she told Gardner on the day of her arrest that the
Jeep was in Georgia being repaired; and that she had nothing to do
with it being removed. She testified further that Gardner did not
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want to know where her husband was; and that it was impossible for
her to know his whereabouts at all times because he was traveling
between job sites. This evidence sufficiently supports the
punitive damages.
2.
Citing Whittington v. Whittington, 535 So. 2d 573 (Miss.
1988), ABC contends that punitive damages cannot be awarded because
there was no evidence of ABC's net worth. But in 1992, the
Mississippi Supreme Court expressly overruled Whittington in C & C
Trucking Co., holding that "it is not legally necessary for either
plaintiff or defendant to introduce evidence of the net worth of
the defendant during the trial to support an award of punitive
damages". 612 So. 2d at 1105.
3.
Finally, ABC asserts that, "[e]ven assuming arguendo that
[ABC] breached its contract with the Townsends, absent an
independent tort such as intentional wrong, insult, abuse or gross
negligence, there is no recovery for punitive damages". This
contention is misplaced; the case was submitted to the jury on the
theories of abuse of process and malicious prosecution, not breach
of contract.5
5
Obviously, ABC's contention that punitive damages cannot be
awarded in the absence of compensatory damages is unavailing in
light of our affirmance of the compensatory damage award.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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