Tapalian v. Town of Seekonk

United States Court of Appeals
For the First Circuit

No. 02-1732
H. CHARLES TAPALIAN,

Plaintiff-Appellee,

v.

JAMES V. TUSINO,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Patrick J. Costello, with whom James W. Simpson, Jr. and
Merrick, Louison & Costello, LLP were on brief for appellant.

Lauren E. Jones, with whom Mark L. LaBollita, Jones
Associates, John B. Reilly, and John Reilly & Associates were on
brief for appellee.

July 23, 2004
 CYR, Senior Circuit Judge. James V. Tusino, the

Superintendent of the Department of Public Works (DPW) for the Town

of Seekonk, Massachusetts ("Town"), appeals from a district court

judgment directing him to pay plaintiff-appellee H. Charles

Tapalian compensatory and punitive damages for violating Tapalian's

equal protection rights in connection with a road reconstruction

project. As we discern no error, we affirm the district court

judgment.

I

BACKGROUND

1. Our review of the record discloses that the jury

rationally could have found the following facts:

In 1989, the Town rejected Tapalian's application

for a permit to construct a subdivision – to be

known as "Pembroke Estates" – because Davis Street,

the lone access road to the subdivision, was too

narrow. Tapalian brought suit against the Town in

state court, and in 1994 the parties entered into

an Agreement for Judgment ("Agreement") whereby

Tapalian agreed as a precondition to the

construction of Pembroke Estates that he would

improve a portion of Davis Street at his own

expense, by "scarifying" the existing road surface

then resurfacing it with a double layer of oil-

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 sealed "stone chip" to a paved width of twenty-two

feet. The Agreement further prescribed that

Tapalian's specifications must be approved by the

Town's DPW director.

In 1995, Tusino was appointed the new DPW superintendent

for the Town. In 1997, Tusino, who was unaware of the 1994

Agreement, caused Davis Street to be widened and resurfaced with

"stone chip" at the Town's expense. Early in 1998, after Tusino

had learned of the Agreement, Tapalian and Tusino met for the first

time, at Davis Street, to discuss other Davis Street improvements

(if any) which Tapalian would be required to make before Tapalian

could commence construction of Pembroke Estates. Tusino informed

Tapalian that, as a condition of his approval of the

specifications, Tapalian was to set him up with "two women" who

worked at a nightclub located in a building owned by Tapalian.

Tapalian advised Tusino that he was not about to act as his "pimp."

At their next meeting, Tusino sought to impose upon

Tapalian other more onerous conditions not explicitly contemplated

under the 1994 Agreement. Although Tusino had not consulted with

any engineering expert, he informed Tapalian that he interpreted

the term "scarification" – contained in the Agreement – to require

that Tapalian undertake a costly pulverization of the existing

stone-chip surface which the Town had just installed within the

previous year. Whereas in road-construction parlance scarification

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simply requires that grooves be etched into the old road surface to

ensure adequate adhesion of the newly applied surfacing materials.

In addition, Tusino insisted that Tapalian straighten the

curves in Davis Street, pave the entire street (as distinguished

from the portion specified in the Agreement), and construct three-

foot-deep, gravel-filled trenches on both sides of the resurfaced

roadway, almost three times the depth prescribed by the "industry

standard." Further, Tusino informed Tapalian that he wanted

asphalt as the top coat, whereas the Agreement called for a less

expensive stone-chip surface. Finally, Tusino insisted that

Tapalian conduct unprecedented sieve tests on several gravel

samples and that Tapalian use more expensive gravel. Tusino's

assistant confided to Tapalian's contractor that Tusino was intent

upon "deliberately busting [Tapalian's] balls."

In November 1998, Tapalian commenced a state court action

for contempt against Tusino and the Town, which had superintended

the Agreement, arguing that the imposition of the new conditions

flagrantly violated the terms of the Agreement. The Town in turn

commenced a lawsuit to enjoin Tapalian from cutting trees on the

subdivision land until after he completed the specified updates to

Davis Street.

On December 11, 1998, Tusino wrote to Tapalian, stating

that he had issued an order on December 1 that all road

construction projects in the Town were to cease for the winter.

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Yet, notwithstanding the purported promulgation of this

unprecedented moratorium, on December 17 Tusino issued a permit to

another contractor, Kevin Murphy, to begin work on a nearby road

construction project at the "Middlemarch" subdivision. Moreover,

none of the additional conditions imposed upon Tapalian were

imposed upon Murphy.

In the spring of 2000, Tapalian decided to proceed. He

hired a contractor to dismantle the surface of Davis Street and

install a new surface, as Tusino had insisted. Tusino then

superimposed a host of additional, costly conditions. For

instance, he demanded that the road be sprayed with calcium

chloride, a procedure Tapalian's contractor deemed not only

unprecedented but unnecessary. Finally, in the course of these

discussions, Tusino informed Tapalian's contractor that he also

expected to be provided with "a forty-foot boat and two girls."

Meanwhile, in November 2000, Tapalian and the Town

settled the pending contempt action brought by Tapalian, as well as

the Town's claim for injunctive relief, and the parties agreed to

the appointment of an independent engineer to determine whether the

final roadwork met the terms of their 1994 Agreement. Thus, Tusino

was relieved of any oversight authority relating to the Davis

Street project.

Soon after an independent engineer certified in 2000 that

Tapalian was in compliance, Tapalian commenced the instant action

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in federal district court against the Town and Tusino, alleging

that Tusino's actions violated the Equal Protection Clause, see 42

U.S.C. § 1983, and demanding both compensatory and punitive

damages. In due course, Tusino counterclaimed for defamation and

infliction of emotional distress. After determining that the

November 2000 settlement was res judicata, the district court

dismissed the Tapalian claims against the Town. However, the

district court denied the motion for summary judgment filed by

Tusino, in his individual capacity, noting that Tusino had adduced

no evidence that he was in privity with the Town in relation to the

November 2000 settlement. Tapalian v. Town of Seekonk, 188 F.

Supp.2d 136, 140-41 (D. Mass. 2002). Following an eleven-day

trial, the jury found that Tusino had violated Tapalian's equal

protection rights, then awarded Tapalian $58,843 in compensatory

damages and $150,000 in punitive damages. Finally, the jury found

for Tapalian on the two counterclaims brought by Tusino. Tusino

now appeals from the judgment entered upon the jury verdict.

II

DISCUSSION

A. The Sufficiency of the Evidence

First, Tusino contends that he is entitled to judgment,

as a matter of law, because Tapalian failed to adduce sufficient

evidence to establish all elements of his equal protection claim.

Denials of motions for judgment as a matter of law are reviewed de

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novo; and after viewing all the evidence and reasonable inferences

therefrom (as well as credibility determinations) in the light most

favorable to the nonmoving party, we will reverse the district

court "'only if the facts and inferences point so strongly and

overwhelmingly in favor of the movant that a reasonable jury could

not have reached a verdict against that party.'" Santos v. Sunrise

Med., Inc., 351 F.3d 587, 590 (1st Cir. 2003) (citation omitted).

The Equal Protection Clause contemplates that similarly

situated persons are to receive substantially similar treatment

from their government. See Barrington Cove Ltd. P'ship v. R.I.

Hous. and Mortgage Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001).

Accordingly, in order to establish his claim Tapalian had to adduce

sufficient evidence from which a rational jury reasonably could

conclude that, "compared with others similarly situated, [he] was

selectively treated . . . based on impermissible considerations

such as race, religion, intent to inhibit or punish the exercise of

constitutional rights, or malicious or bad faith intent to injure

a person." Id. (emphasis added).

The Tapalian claim rests upon the latter prong, viz., an

allegation of malice or bad faith. Normally, such a plaintiff must

establish more than that the government official's actions were

simply arbitrary or erroneous; instead, the plaintiff must

establish that the defendant's actions constituted a "gross abuse

of power." Baker v. Coxe, 230 F.3d 470, 474 (1st Cir. 2000); see

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Rubinovitz v. Rogato, 60 F.3d 906, 912 (1st Cir. 1995) (noting that

"gross abuse of power" may obtain where official harbors personal

hostility toward plaintiff, and undertakes a "malicious

orchestrated campaign causing substantial harm"); see also Village

of Willowbrook v. Olech, 528 U.S. 562, 566 (2000) (Breyer, J.,

concurring) (noting that some otherwise "ordinary violations of

city or state law" may become actionable under the equal protection

clause provided the plaintiff proves "extra factor[s]," such as

"vindictive action," "illegitimate animus" or "ill will"); Esmail

v. Macrane, 53 F.3d 176, 179, 180 (7th Cir. 1995) (finding viable

equal protection claim based upon (i) mayor's "orchestrated

campaign of official harassment directed against [plaintiff] out of

sheer malice" and (ii) "spiteful effort to 'get' [plaintiff] for

reasons wholly unrelated to any legitimate state objective").

1. The "Similarly Situated" Standard

The determination as to whether individuals are

"similarly situated" for equal protection purposes is an amorphous

one. See Barrington Cove, 246 F.3d at 8. "'The test is whether a

prudent person, looking objectively at the incidents, would think

them roughly equivalent and the protagonists similarly situated.

Much as in the lawyer's art of distinguishing cases, the "relevant

aspects" are those factual elements which determine whether

reasoned analogy supports, or demands, a like result. Exact

correlation is neither likely nor necessary, but the cases must be

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fair congeners. In other words, apples should be compared to

apples.'" Id. (citation omitted).

Tusino contends on appeal (i) that Tapalian has adduced

no evidence that the Davis Street project was similarly situated in

all relevant respects to the Murphy road project in the nearby

Middlemarch subdivision, (ii) that Tapalian's own investigator

testified that there was "no comparison" between the two projects,

and, thus, (iii) that Tapalian failed to establish that Tusino's

imposition of different specifications for the two projects

violated Tapalian's equal protection rights. These contentions

fail.

The evidence adduced at trial did not preclude a rational

jury from finding that Davis Street is similar to other road

construction projects in Seekonk. See Santos, 351 F.3d at 590.

Thus, this is one of those relatively rare cases in which the jury

could directly compare an apple to an apple. The district court

instructed the jury to compare the Davis Street project with the

projects of "other individuals, including the Town of Seekonk and

the town contractors." (Emphasis added.) As Tusino tendered no

objection to the jury instruction, it became the law of the case.

See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 8

(1st Cir. 2000).

The distinctions suggested by Tusino – between Davis

Street and Middlemarch – rest principally upon his premise that the

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former project required heightened construction specifications

because the public would utilize Davis Street more extensively than

the Middlemarch Road. His public-welfare justification is belied,

however, by the evidence that the Town itself had upgraded and

widened Davis Street as recently as 1997, yet had not considered it

necessary, in the interests of public safety, that it upgrade Davis

Street to the more stringent specifications Tusino sought to impose

upon Tapalian only a few months later, during early 1998. To cite

but one instance, the Town admittedly did not dig roadside trenches

to a depth of three feet. Thus, in light of the unobjected-to jury

instruction, the jury remained free to infer that conditions at

Davis Street were not such a special case, but instead were

substantially similar to other road construction sites in Seekonk.

2. The "Selective Treatment" Standard

Tusino contends that his motion for judgment as a matter

of law should have been granted because Tapalian adduced no

evidence which would compel a jury to conclude that Tusino lacked

a rational basis for according different treatment to the Davis

Street project. Tusino asserts (i) that the Agreement explicitly

provided that "[a]ll specifications for the paving of the Improved

Davis Street . . . shall be as approved by the Director of the

Seekonk [DPW]," and (ii) that the heightened specifications he

imposed upon Tapalian were based upon his good-faith interpretation

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of certain ambiguous terms in the Agreement. Each of these

contentions is seriously flawed.

First, from the outset Tusino has misperceived the

applicable standard of review. It is not necessary that the

Tapalian evidence compel a jury finding of selective treatment, but

simply that it permit such a rational inference. See Santos, 351

F.3d at 590.

Second, as previously stated, see supra Section II.A.1,

the "public-safety" rationale Tusino offers for imposing stringent

conditions upon Tapalian is undermined by the more lax

specifications of the Town's earlier upgrade. Whatever ambiguities

it may contain, the Agreement reasonably cannot be construed as

according Tusino carte blanche to impose any specifications he

deemed appropriate, including those which served no legitimate

governmental purpose. See Esmail, 53 F.3d at 180.

Finally, yet most importantly, the trial record is laden

with the language of personal malice and "bad faith" retaliation,

aimed at punishing Tapalian immediately following his rejection of

Tusino's request that Tapalian supply him with "two women."

Although Tusino denies having made any such request, those

credibility determinations were for the factfinder. See Santos,

351 F.3d at 590. By way of corroboration, Tapalian's contractor

testified that Tusino subsequently stated that he wanted "a forty-

foot boat and two girls." Moreover, the jury heard the testimony

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of three women who had been propositioned by Tusino, at a time when

Tusino was seeking sexual favors in exchange for jobs and/or his

approval of construction projects. Moreover, even Tusino's own

assistant stated that Tusino was "deliberately busting [Tapalian's]

balls." Since we must presume that the jury believed these

witnesses, as it was entitled to do, it rationally could infer that

Tusino had engaged in a "malicious orchestrated campaign causing

substantial harm," thereby constituting a gross abuse of power.

Rubinovitz, 60 F.3d at 912.1

1
Tusino asserts on appeal that the Tapalian equal protection
claim is barred by the res judicata effect of the November 2000
settlement of the lawsuits between the Town and Tapalian, since
Tusino substantially controlled that litigation. See In re
Iannochino, 242 F.3d 36, 46 (1st Cir. 2001) (finding privity "'if
a nonparty either substantially controlled a party's involvement in
the initial litigation or, conversely, permitted a party to the
initial litigation to function as his de facto representative'")
(citation omitted). As Tusino failed to raise this argument in his
Rule 50(a) motion at the close of the evidence, it is deemed waived
on appeal. See Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63,
71-72 (1st Cir. 2001) (noting that party cannot raise an argument
in a post-verdict Rule 50(b) motion which was not first raised in
its Rule 50(a) motion at the close of the evidence). Moreover,
even if the issue had not been waived, Tusino identifies no
evidence to demonstrate how he controlled the prior litigation, see
Tapalian, 188 F. Supp.2d at 140-41 (denying Tusino's motion for
summary judgment based on res judicata defense, and noting that
party asserting "substantial control" and "virtual representation"
theories supporting res judicata has a demanding burden of proof),
and it strains credulity to presume that Tusino substantially
controlled litigation wherein the resultant settlement forced him
to recuse himself from further oversight of the Davis Street
project in favor of an independent engineer. Thus, we can perceive
no plain error. See Chestnut v. City of Lowell, 305 F.3d 18, 20
(1st Cir. 2002) (en banc) ("Failures to object, unless a true
waiver is involved, are almost always subject to review for plain
error.").

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B. Punitive Damages

Next, Tusino urges us to reduce or vacate the $150,000

punitive damages award. Challenges to punitive damages awards are

reviewed de novo, and are to be affirmed unless "'we find it

"certain" that the amount in question exceeds that necessary to

punish and deter the alleged misconduct.'" Rivera-Torres v. Ortiz-

Velez, 341 F.3d 86, 102 (1st Cir. 2003), cert. denied, 124 S. Ct.

1875 (2004).

In this regard, Tusino first contends that a juror's

post-verdict comments, which appeared in a local newspaper, suggest

that the jury improperly awarded high punitive damages in order to

deter the Town, rather than Tusino. We do not consider post-

discharge comments made by jurors to the press, since but for an

"extraneous influence" exception not applicable here, a party is

prohibited from impugning a jury verdict by probing the mental

processes of the jurors. See United States v. Connolly, 341 F.3d

16, 34 (1st Cir. 2003); Lacy v. Gardino, 791 F.2d 980, 985 n.1 (1st

Cir. 1986); Fed. R. Evid. 606(b).

Second, Tusino complains that Tapalian failed to adduce

evidence of Tusino's financial circumstances, whereby the jury

might have been enabled to determine that he could not afford a

high punitive damages award. The present argument ignores the

principle that it is the defendant's burden – not the plaintiff's

– to adduce evidence of the defendant's lack of financial

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resources, see Brown v. Freedman Baking Co., 810 F.2d 6, 11 (1st

Cir. 1987); Fishman v. Clancy, 763 F.2d 485, 490 (1st Cir. 1985);

see also Provost v. City of Newburgh, 262 F.3d 146, 163 (2d Cir.

2001), and Tusino concededly failed to meet that burden.

Finally, Tusino contends that the evidence adduced at

trial does not support the great disparity between the $58,843

compensatory damages award and the $150,000 punitive damages award.

In assessing the reasonableness of a punitive damages award, we

consider (i) the degree of reprehensibility of the defendant's

conduct; (ii) the ratio between the punitive damages and the actual

and potential damages; and (iii) the comparison between the

punitive damages figure and other civil and criminal penalties

imposed for comparable conduct. See Davis v. Rennie, 264 F.3d 86,

116 (1st Cir. 2001). The first criterion (reprehensibility) is by

far "the most important indicium," id., and, after careful

consideration, we have no hesitation in concluding that the

prolonged personal vendetta Tusino conducted against Tapalian for

having rejected Tusino's requests amply demonstrates the requisite

degree of reprehensibility. With respect to the two latter

criteria, the 3:1 ratio between the $58,843 compensatory damages

award and the $150,000 punitive damages award does not approach the

"shock the conscience" standard.

Affirmed.

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