Cruz, Sylvia v. Town of Cicero ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-3406, 01-2337
Sylvia Cruz, et al.,
Plaintiffs-Appellees,
v.
Town of Cicero, Illinois,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 3286--George W. Lindberg, Judge.
Argued April 10, 2001--Decided December 19, 2001
Before Coffey, Rovner, and Diane P. Wood,
Circuit Judges.
Diane P. Wood, Circuit Judge. Armando
Gonzalez, Michael Adams, and Victor Satas
were in the business of condominium
conversions in Cicero, Illinois. In 1999,
they suddenly encountered obstacles
thrown in their path by the Town of
Cicero. They believed that Cicero,
through its president Betty Loren-
Maltese, was applying the laws to them in
an unconstitutional manner. Together with
a number of other people, they sued the
Town, claiming that it had violated their
Fourteenth Amendment equal protection
rights, and a jury awarded them a verdict
of $402,000. Cicero responded first with
motions for a judgment as a matter of law
and a new trial, and then with the appeal
in No. 00-3406. We affirm that judgment
of the district court. Appeal No.
01-2337, which we consolidated with the
first in our order of June 6, 2001,
concerns the district court’s award of
attorneys’ fees and costs in favor of the
plaintiffs in the principal case. Finding
no abuse of discretion, we also affirm
that order.
I
Once a jury has rendered a verdict, we
view the evidence in the light most
favorable to that verdict. The account of
the relevant facts that follows should
therefore be understood in that light. In
1996, Gonzalez and the other appellees
(to whom we shall refer collectively as
the Gonzalez parties, unless the context
otherwise requires) began purchasing old
multi-family apartment buildings in
Cicero. They rehabilitated the units in
those buildings and then sold the units
individually as condominiums. Their only
significant competitor in the condominium
conversion business was Joe Pav, a well-
established figure in Cicero’s real
estate community and, not coincidentally,
the former boss and continuing ally of
Betty Loren-Maltese.
Before any person in Cicero sells a
piece of property, she must obtain a
"real estate transfer stamp" from the
Town. The first step toward obtaining the
stamp is for the seller to apply for and
receive a "certificate of compliance" for
the property from Cicero’s Building
Department. When a property seller
submits a request for a certificate of
compliance, the Building Department
dispatches an inspector to the property
to ensure that it is in full compliance
with all relevant codes and zoning rules.
In the normal course, once an inspector
determines that a piece of property is in
compliance, issuance of a certificate is
a mere formality. The Building
Commissioner merely verifies that the
inspector found no problems and then
directs that the certificate be issued.
Until early 1999, Cicero imposed the
same permitting requirements on everyone,
including the Gonzalez parties and Pav,
and no one was having any trouble passing
inspections and getting certificates of
compliance for his rehabilitated units.
Prior to February of 1999, the Gonzalez
parties applied for and received building
permits to do restoration work on the
units in their buildings and, when the
units were ready to be sold, Cicero
issued certificates of compliance and
real estate transfer stamps. By September
of 1998, the Gonzalez parties had sold
fifty units in four buildings. Cicero
also initially issued certificates of
compliance for the units in two of the
six buildings that are the subject of
this litigation--the Grace and the Warren
Park. The Gonzalez parties received
certificates for all the units in these
two buildings but did not sell four
available units before the certificates
expired. Then the trouble began.
The first sign that all was not well
came with Gonzalez’s original application
for certificates of compliance for the
units in the Albright, Anna, and Daniel
buildings in early February of 1999.
Initially, the Building Department simply
failed to respond to their applications.
When Gonzalez inquired about scheduling
inspections, the clerk of the Building
Department informed him that his
applications had been transferred to the
Town’s Legal Department. There he was
advised that he needed to apply to the
Town Board for legal non-conforming use
designations for the buildings. This was
a curious determination given that
Gonzalez had only recently purchased the
buildings and the sellers had received
certificates of compliance and real
estate transfer stamps without
difficulty. Not wanting to cause trouble,
Gonzalez applied for non-conforming use
designations and ultimately received
them.
After obtaining the non-conforming use
designations, Gonzalez again approached
the Building Department about scheduling
inspections for the affected units.
Inspectors were dispatched to the
buildings and filed reports concluding
that the units were in compliance with
all relevant codes. According to
established practice, this should have
ended the matter. In fact, both the
former Building Commissioner and the
Director of Code Enforcement testified at
trial that following the inspections they
would normally have issued the
certificates as a matter of course. But
the certificates did not materialize.
Gonzalez made inquiries at the Building
Department and was again referred to the
Legal Department. This time the assistant
town counsel told Gonzalez that Loren-
Maltese "wanted to know where [their]
condominium approval was."
This request was perplexing. Cicero at
that time did not have a condominium
ordinance, much less any established
procedure for acquiring "condominium
approval." Not surprisingly, therefore,
the Gonzalez parties had not been
required to seek any such approval for
any of the units they had sold over the
previous year. Nonetheless, again trying
to be accommodating, Gonzalez sent Loren-
Maltese a letter seeking condominium
approval. Loren-Maltese put the issue on
the agenda of the next Town Board
meeting.
At that meeting, Loren-Maltese made
another unprecedented request. She wanted
to know if appellees had 1.5 parking
spaces for each of the condominium units
that they intended to sell. The Gonzalez
parties had received separate
certificates of compliance for 50 similar
units over the past two years without
ever having to show the existence of 1.5
parking spaces per unit. And parking had
never before been cited as a problem with
the current batch of units-- including
the units at the Grace and the Warren
Park, which already had received
certificates of compliance once.
Loren-Maltese claimed that the parking
requirement was part of a zoning
provision that had been on the books long
before Gonzalez began doing condominium
conversions. That ordinance required 1.5
parking spaces per unit constructed or
"substantially altered" after 1977.
The buildings owned by the Gonzalez
parties had been constructed before 1977,
and the phrase "substantially altered"
had never before been interpreted to
include the kinds of renovations they had
made. Among other things, they had not
added units, changed the configuration of
the units, or made any other structural
changes to the buildings. In essence,
they had made cosmetic improvements and
were proposing to change the ownership
structure of the buildings. The
renovations on the six buildings for
which Gonzalez was now allegedly required
to provide parking were no different from
the renovations he had completed on the
other buildings that had received
certificates of compliance without
difficulty. At trial, no Cicero official,
including Loren-Maltese, could define
"substantially altered."
Following the Town Board meeting, Loren-
Maltese directed the Economic Development
Committee to determine how much parking
was available at Gonzalez’s buildings.
Gonzalez never contended that he could
satisfy the 1.5 spaces requirement, so it
was no surprise when the Economic
Development Committee reported to the
Town Board that the number of spaces fell
short of the alleged requirement. Loren-
Maltese thereupon instructed Gonzalez
that he could not sell the units unless
he obtained a variance from the Zoning
Board, which was headed by her friend and
long-time political supporter Anthony
Accardo. Gonzalez dutifully applied for
the variances but was turned down. This
had the effect of shutting down his
condominium conversion business.
To someone unaware of Cicero’s history,
all of these new requirements and
shifting standards might have appeared
rational enough but for two anomalies.
The first was that at the same time that
the Gonzalez parties were being subjected
to the new regime, Joe Pav and others
continued to do business under the old
rules. Between February and April of
1999, Pav applied for certificates of
compliance for units in his Morton Park
building. This was an old multi-family
rental building that Pav had
rehabilitated and (like the Gonzalez
group) was now selling as individual
condominiums. The project was completed
with much fanfare, including a ribbon-
cutting ceremony personally attended by
Loren-Maltese. Pav’s applications for
certificates of compliance for these
units sailed right through the Building
Department, without any detours to the
Town Hall or the Legal Department.
Inspectors were promptly dispatched and
reports were issued finding the units to
be in compliance. Finally, Pav received
certificates approved by Loren-Maltese’s
self-described "best friend," Mary Lynn
Chlada, the head of the Building
Department. Pav was not required to
obtain "condominium approval" for the
conversions. Also tellingly, he received
the certificates even though his Morton
Park building had undergone essentially
the same renovations as the Gonzalez
buildings and lacked the allegedly
required 1.5 parking spaces per unit.
Similarly, Hector Garcia, a real estate
broker in Cicero, had no trouble
obtaining a certificate of compliance on
April 20, 2000, for a six-unit rental
building that he sold after a renovation
similar to Gonzalez’s. Garcia’s building
had three off-street parking spaces--six
fewer than what Loren-Maltese had claimed
to Gonzalez was de rigeur.
The second anomaly related to the timing
and reason for the new requirements the
Gonzalez parties were forced to satisfy.
It turned out that the difference in
treatment between them and others like
Pav and Garcia was not accidental.
Instead, it arose out of a breakdown in
Gonzalez’s professional relationship with
Loren-Maltese. In 1998, Cook County
approached Gonzalez about finding rental
space for a new Women, Infants, and
Children (WIC) office in Cicero. Gonzalez
eventually negotiated a lease with the
County for space in one of his buildings.
The Town of Cicero, however, needed to
approve the lease and Gonzalez was told
Loren-Maltese had decided to block the
deal. Gonzalez scheduled a meeting with
Loren-Maltese at which she acknowledged
that this was true. Gonzalez attempted to
persuade her to approve the lease, and by
the end of the meeting, Loren-Maltese was
non-committal. She told Gonzalez to
expect a call from Edward Vrdolyak, a
former Chicago alderman with no official
position in the Town of Cicero.
Shortly thereafter, Vrdolyak summoned
Gonzalez to his Chicago office. As the
two talked, Vrdolyak assured Gonzalez
that Loren-Maltese was his "friend," that
she would help him, but that Gonzalez
should "take care of her." Not long after
this meeting, Loren-Maltese permitted the
lease to go through. She later testified
that she had done Gonzalez a "million-
dollar" favor (as opposed, we suppose, to
making a decision in the best interest of
the Town). Gonzalez, however, apparently
did not get the message Vrdolyak was
trying to send. Instead of a more
valuable show of gratitude, Gonzalez sent
Loren-Maltese a bouquet of flowers. This
proved to be insufficient. Not long
after, the question of his certificates
of compliance for the condominium units
at issue in this case came to a head.
Believing that his inability to obtain
certificates of compliance was the result
(at least in part) of Loren-Maltese’s
dissatisfaction with his chosen method of
thanking her for her assistance on the
WIC lease, the Gonzalez parties filed a
complaint alleging that their rights had
been violated in a number of ways,
including through Cicero’s violation of
their equal protection rights under the
Fourteenth Amendment. Upon the
recommendation of a magistrate judge, the
district court denied the plaintiffs’
request for a preliminary injunction in
an order issued April 6, 2000. The
parties then filed cross-motions for
summary judgment. The district court
denied Gonzalez’s motion and granted
Cicero’s motion on all claims except the
one based on the equal protection clause.
Cicero filed a motion for
reconsideration, which the district court
denied August 7, 2000. As we have already
noted, a jury trial ensued, the jury
found for the plaintiffs on the equal
protection claim, and it awarded them
damages in the amount of $402,000. Cicero
filed motions for a judgment as a matter
of law or, in the alternative, for a new
trial under Fed. R. Civ. P. 50 and 59. The
district court denied these motions on
September 7, 2000, and this appeal
followed.
II
Cicero has chosen on appeal to tackle
the sufficiency of the evidence to
support the jury’s verdict--a daunting
task, given the deferential standard that
applies to such reviews. It also
complains that the district court
mistakenly admitted certain testimony
with regard to damages and that it was
entitled to what it calls an "itemized
jury verdict"-- apparently, in context,
this means Cicero believes the district
court abused its discretion when it did
not submit special interrogatories under
Fed. R. Civ. P. 49 with respect to damages.
We will take each argument in turn.
A. Sufficiency of the Evidence
1. Equal Protection Violation
Although Cicero filed motions for
judgment as a matter of law and for a new
trial with the district court, it has
framed its challenge on appeal to the
equal protection verdict only in terms of
whether, based on the evidence presented
at trial, a reasonable jury could
conclude that Cicero committed an equal
protection violation. This formulation of
the standard of review applies only to
the denial of a motion for judgment as a
matter of law. Kossman v. Northeast Ill.
Reg’l Commuter R.R., 211 F.3d 1031, 1036
(7th Cir. 2000). Cicero has thus waived
any argument that it was entitled to a
new trial because the jury’s verdict was
against the manifest weight of the
evidence, a claim we would review for
abuse of discretion. See Trzcinski v.
American Cas. Co., 953 F.2d 307, 315 (7th
Cir. 1992). We are particularly
comfortable finding waiver in this case
because Cicero failed to include the
district court’s judgment(s) denying its
post-trial motions in its Rule 30(a)
appendix. Not only is this sanctionable
misconduct, Collins v. Educ. Therapy
Ctr., 184 F.3d 617, 622 (7th Cir. 1999),
but it forces us to infer from the
arguments in Cicero’s opening brief which
of the district court’s judgments Cicero
has chosen to appeal. As we read its
brief, Cicero is claiming only that it
was entitled to judgment as a matter of
law.
We review de novo a district court’s
denial of a motion for judgment as a
matter of law. Goodwin v. MTD Products,
Inc., 232 F.3d 600, 605 (7th Cir. 2000).
Our inquiry is limited to determining
whether, when viewed in the light most
favorable to the non-moving party, the
evidence presented at trial, combined
with all reasonable inferences
permissibly drawn therefrom, is
sufficient to support the jury’s verdict.
Id. at 606.
After setting out the facts in the
record in the light most favorable to its
own position, Cicero spends much of its
opening brief asserting that this was a
"garden variety zoning dispute" that had
no business being in federal court. While
it is true that this characterization
appears in a number of cases involving
challenges to land-use decisions, see
Hartland Sportsman’s Club, Inc. v. Town
of Dalefield, 35 F.3d 1198, 1199-1200
(7th Cir. 1994); Coniston Corp. v.
Village of Hoffman Estates, 844 F.2d 461,
467 (7th Cir. 1988), these are not magic
words that municipal defendants can
simply recite in order to insulate their
land-use decisions from scrutiny under
federal law. Whether Cicero is entitled
to judgment as a matter of law depends on
the facts in the record construed
favorably to the Gonzalez parties, not on
convenient quotes applied to a version of
the facts rejected by the jury. (At one
point Cicero was also arguing that the
district court erred when it refused to
grant summary judgment on the equal
protection claim. This effort was
misguided. Once a trial on the merits has
occurred, we rely on the record developed
at trial and will not review an earlier
denial of summary judgment. Marshall v.
Porter County Plan Comm’n, 32 F.3d 1215,
1220 (7th Cir. 1994). The Town wisely
abandoned this argument in its reply
brief.)
Gonzalez was proceeding under the "class
of one" Equal Protection theory
recognized by the Supreme Court in
Village of Willowbrook v. Olech, 528 U.S.
562 (2000). In Olech, the Court explained
that "the number of individuals in a
class is immaterial for equal protection
analysis." Id. at 564 n. *. A plaintiff
succeeds on a class of one claim by
demonstrating that "she has been
intentionally treated differently from
others similarly situated and that there
is no rational basis for the difference
in treatment." Id. at 564. In Hilton v.
City of Wheeling, 209 F.3d 1005 (7th Cir.
2000), we interpreted Olech to require
that the plaintiff present evidence that
"the defendant deliberately sought to
deprive him of the equal protection of
the laws for reasons of a personal nature
unrelated to the duties of the
defendant’s position." Id. at 1008. "The
Equal Protection Clause provides a remedy
when a powerful public official pick[s]
on a person out of sheer vindictiveness,"
or because of a "totally illegitimate
animus" toward the plaintiff. Albiero v.
City of Kankakee, 246 F.3d 927, 932 (7th
Cir. 2001) (internal citations and
quotations omitted).
Cicero’s only challenge to the jury’s
verdict is that the Gonzalez parties
failed to present enough evidence that
the decision not to furnish certificates
of compliance to them after February of
1999 was motivated by "totally
illegitimate animus." Cicero argued this
point aggressively during closing
arguments (and the court gave a "totally
illegitimate animus" instruction), but
the jury disagreed, finding that
precisely that animus motivated the
Town’s stance toward these developers. On
the record before us, we cannot say that
no reasonable jury could have reached
this conclusion. (Indeed, as the
following account demonstrates, we are
satisfied that a challenge based on the
weight of the evidence would also have
failed, had this argument been
preserved.)
The evidence read in the light most
favorable to the jury’s verdict
established that in 1998 and early 1999,
there were two dominant players in the
Cicero condominium conversion business,
the Gonzalez parties and Pav. Until early
1999, Cicero imposed the same
requirements on everyone. No one was
asked to obtain "condominium approvals"
prior to the issuance of certificates of
compliance, and no one had to demonstrate
that he had 1.5 off-street parking spaces
available for each rehabilitated unit he
intended to sell. That changed in
February of 1999 in the manner we have
already described. While Pav continued to
receive certificates of compliance under
the old rules, Gonzalez was subjected to
a series of unprecedented requirements,
many of which were substantively
questionable--like requiring "condominium
approval" in the absence of any ordinance
or policy creating such a requirement--
and all of which the jury reasonably
could have inferred were traceable to
Loren-Maltese and to her personal
hostility toward Gonzalez--a hostility
reflecting precisely the "sheer
vindictiveness" called for in Albiero.
The jury heard testimony that Loren-
Maltese personally controlled land-use
regulation in Cicero and reached her
decisions on at best questionable
personal grounds. By late 1998, she had
installed her closest friend, Mary Lynn
Chlada, as Director of Code Enforcement,
even though Chlada had no experience with
land use and zoning issues. Loren-Maltese
then transferred to Chlada all the powers
formerly vested in the Building
Commissioner, including the power to
issue certificates of compliance. She
appointed the former Building
Commissioner, Anthony Accardo, to a paid
position heading the Zoning Board as a
"favor." Accardo, also a loyal supporter
of Loren-Maltese, testified that he would
never challenge her authority. Loren-
Maltese herself corroborated her
willingness and ability to personalize
land-use decisions when she acknowledged
that she had first blocked Gonzalez’s WIC
lease and then decided to "help" him by
letting it go through--although, as later
events proved, not with a "free pass."
The jury also heard evidence suggesting
that Loren-Maltese considered it
perfectly acceptable to expect those who
benefitted from her position as Town
President to give financial support to
her political campaigns. There was
testimony at trial that city officials
approached local businesses needing
cooperation from the Town of Cicero and
encouraged them to purchase large numbers
of $65 golf-outing tickets in support of
Loren-Maltese’s local Republican Party.
Loren-Maltese acknowledged that to raise
money for her re-election efforts, she
relied on the "loyalty of [her] friends,"
including Accardo, whom she repaid by
naming him to be the (paid) Zoning Board
Chairperson. Accardo, she admitted, had
"over the years been loyal" and raised
money for her campaigns. When challenged
about this practice, Loren-Maltese
responded, "That’s just politics." A rea
sonable jury could have concluded from
Loren-Maltese’s testimony that this kind
of "loyalty" was an important
qualification for obtaining positions in
Cicero’s government and for obtaining
other public benefits as well.
In this context, it was reasonable to
believe that Loren-Maltese could and
would, under the appropriate
circumstances, use her control over land-
use regulation in Cicero to serve her
personal ends through the unequal
application of the laws. And the Gonzalez
parties presented substantial evidence
that this was precisely what happened to
them. The jury could reasonably have
inferred from the testimony about the
favor to Gonzalez that was brokered by
Vrdolyak that Loren-Maltese expected
Gonzalez’s thanks to take the form of a
financial contribution. Vrdolyak had no
official position in Cicero government,
much less a formal role in its land-use
decisions, and so his involvement was
suspicious at best. What need was there
for Vrdolyak’s participation if Loren-
Maltese intended to make her decision
based simply on the best interests of the
Town of Cicero? The dubiousness of his
role in the matter was confirmed by his
statement to Gonzalez that Loren-Maltese
was his friend and would help him, but
that Gonzalez needed to "take care of
her." A reasonable jury could conclude
from this evidence that Loren-Maltese
involved Vrdolyak as an intermediary to
convey her expectation that Gonzalez show
the kind of loyalty she expects from
friends for whom she does million-dollar
favors.
Given the evidence in the record of the
unprecedented, selectively applied, and
substantively questionable standards that
Loren-Maltese imposed on Gonzalez shortly
after Gonzalez attempted to "take care of
her" with a bouquet of flowers, a
reasonable jury could also have concluded
(as this one did) that the trouble the
Gonzalez parties had obtaining
certificates of compliance for their
units in early 1999 had nothing to do
with a lack of "condominium approval" or
available parking. Instead, these
troubles stemmed from Loren-Maltese’s
desire to punish Gonzalez for not
repaying her "help" on the WIC lease with
a significant financial contribution of
some kind.
Hostility stemming from a person’s
failure to contribute to a politician’s
campaign fund, or otherwise reward her
personally for permitting access to
government services, falls in the
category of "totally illegitimate
animus"; this motivation was not related
to Loren-Maltese’s duties as Town
President and it is not a reason to deny
certificates of compliance that is
rationally related to a legitimate
government interest. As Cicero argues,
there is certainly evidence in the record
which, if believed by a jury, would have
put this case in the category of a run-
of-the-mill zoning dispute. But the jury
was not persuaded by that evidence and we
cannot say that its decision was
unreasonable.
2. Evidence of Damages
Cicero next argues that the district
court erred in permitting the Gonzalez
parties "to present their alleged damages
by use of inadmissible hearsay." In
general, we will not reverse a district
court’s evidentiary ruling unless we find
that the court abused its discretion.
Palmquist v. Selvik, 111 F.3d 1332, 1339
(7th Cir. 1997). The burden is still
greater, however, where the appellant
seeks to set aside a jury verdict in a
civil case. Even if the district court
erred, we will only set aside a jury
verdict if the appellant demonstrates
that the error was not harmless, i.e.
that it affected appellant’s substantial
rights. Mason v. Southern Ill. Univ. at
Carbondale, 233 F.3d 1036, 1042-43 (7th
Cir. 2000); Fed. R. Civ. P. 61, Fed. R. Evid.
103(a).
The testimony at issue was given by
appellee Michael Adams, a Cicero real
estate broker and an equity interest
holder in the buildings that are the
subject of this litigation. Cicero
contends that Adams’s testimony on
damages should have been excluded in its
entirety. Without it, Cicero continues,
the Gonzalez parties could not
demonstrate that they had "ready, willing
and able buyers" for all of their units
and thus could not support their claim
for damages. This is how, in Cicero’s
view, the allegedly erroneous admission
of Adams’s testimony affected its
substantial rights.
We find that Cicero’s arguments miss the
mark in several ways. Gonzalez and his
colleagues sought consequential damages
of between $1.1 and $1.3 million. Of
that, $643,802 represented carrying costs
for the units that had gone or were ready
to go on the market but could not be sold
because of the lack of certificates of
compliance. The Gonzalez parties
presented documentary evidence of what it
cost to maintain units as long as they
were not sold. They relied on Adams to
estimate how long it would have taken to
sell the units once they were placed on
the market. Adams had been a licensed
real estate broker in Cicero for seven
years at the time of the trial. Starting
in 1996 he was heavily involved in
converting condominium units in Cicero.
On this basis the district court found
Adams competent to give lay expert
testimony regarding the Cicero
condominium market under Fed. R. Evid. 701,
without objection from Cicero.
When asked how he picked the dates on
which carrying cost damages began to
accrue for the various units, Adams
explained that based on his knowledge of
the Cicero condominium market--including
his marketing and sale of 75 condominium
units--it would generally take three to
four months from the time the unit went
on sale to the time of closing a deal. He
specifically mentioned his experience
selling units in the Dalia Condominiums.
The Dalia was, according to Adams, "a
building similar to [the Daniel]." In "a
three and half month period, from the
time we started marketing, we closed
[i.e., sold] all 18 units." Adams made
clear that the three to four month
period--not the existence of any
particular contracts on the units--was
the basis for estimating damages. Again,
Cicero did not object to any of this
testimony below or on appeal.
Cicero’s sole objection was to testimony
Adams offered regarding the existence of
contracts on specific units prior to the
Town’s decision to stop issuing
certificates of compliance. On several
occasions during his testimony, Adams
mentioned that contracts existed on many
of the units that were the subject of
this litigation. On cross examination,
Adams acknowledged that his belief that
he had contracts for the units was based
on conversations that he had with loan
officers and title companies regarding
the availability of financing and the
setting of closing dates. Adams testified
that this was the normal means by which
he would obtain such information. Cicero
objected that Adams’s testimony was
hearsay, that he had no independent
knowledge of the existence of the
contracts and was asserting for the truth
of the matter what others had told him.
The district court concluded that this
was hearsay but that it was sufficiently
reliable to be admitted under Fed. R. Evid.
807, the catch-all exception to the
hearsay rule.
We need not decide whether this was
error, because even if it was, it did not
affect Cicero’s substantial rights. The
district court recognized Adams as a lay
expert under Fed. R. Evid. 701, competent
to testify on the Cicero condominium
market. Cicero did not object to this
determination below and it has not raised
the issue on appeal. As a lay expert,
Adams explained that based on his history
of selling condominiums in Cicero, he
calculated the damages date not based on
the existence of contracts for the units
in the various buildings, but rather
according to when they were ready to go
on the market. With Adams’ lay expertise
unchallenged, we find no merit in
Cicero’s contention that because Adams’s
testimony regarding the existence of con
tracts may have been based on hearsay,
all his damages testimony should be
excluded.
There is similarly no merit to Cicero’s
claim that Gonzalez’s damages estimate
depended on demonstrating the existence
of contracts on each of the units in each
of the buildings. It was enough for
Gonzalez to create a rational basis for a
damages estimate in the case. Bruso v.
United Airlines, Inc., 239 F.3d 848, 856
(7th Cir. 2001) (jury’s damages award
will be upheld if it is rationally
related to the evidence in the record).
We reject Cicero’s contention that the
appellees "cannot claim damages for costs
on units when they acknowledge that
buyers for those units did not exist."
Gonzalez presented competent evidence,
unrebutted by Cicero, that had he been
able to obtain the certificates of
compliance it would have taken three to
four months to find buyers and close the
sales on those units. Requiring him to
have actual buyers in circumstances such
as these would effectively prevent
recovery since Gonzalez could hardly have
entered into contracts with prospective
buyers knowing that he would be unable to
get the permits necessary to sell the
property. To the extent that the lack of
actual buyers was a result of Cicero’s
unconstitutional actions in denying the
requisite permits and approvals, Cicero
is estopped from relying on those grounds
to dispute the damages. Adams’s testimony
regarding the existence of the contracts
on individual units simply reinforced the
validity of his three to four month
estimate. Cicero has not argued, nor
could we find, that this reinforcement
affected its substantial rights. We thus
conclude that any error committed by the
district court in admitting the one part
of Adams’s testimony to which Cicero
objected was harmless.
B. Rule 49 Special Interrogatories
Whether or not to grant a party’s
request to submit special interrogatories
(either on all issues or on a subset of
issues like damages) is committed to the
sound discretion of the district court.
Bularz v. Prudential Ins. Co., 93 F.3d
372, 377 (7th Cir. 1996). Cicero alleges
that the district court abused its
discretion by refusing to submit
interrogatories regarding damages. It
argues that Gonzalez’s damages were
"speculative" and that an itemized
verdict "would be the only reasonable way
to determine that the jury was not
impermissibly awarding punitive damages"
instead of compensatory damages. Cicero
cites not a single case in support of its
argument and we reject it. Especially in
light of the fact that damages in this
case were not unusually speculative and
that the jury awarded only a third of the
actual damages it reasonably could have,
Cicero’s argument, if accepted, would
entitle parties to itemized damages
verdicts on demand. Fed. R. Civ. P. 49
gives the district court the discretion
to submit a general verdict, Hibma v.
Odegaard, 769 F.2d 1147, 1157 (7th Cir.
1985), and it did not abuse its
discretion by doing so in this case.
III
Finally, we turn to the attorneys’ fees
appeal, No. 01-2337. In a minute order
entered on April 30, 2001, the district
court awarded the plaintiffs $298,485.25
in attorneys’ fees and $14,495.52 in
costs. Later, on May 16, 2001, the court
amended the fee portion of the award by
adding another $14,397.75 to it, which
resulted in a total fee award of
$312,883. Although Cicero did not dispute
that the plaintiffs were entitled to an
award of $222,819.25 in attorneys’ fees
and $10,591.55 in costs, it objected to
anything over those amounts. It has
appealed from the April 30 and May 16
orders of the district court, to this
extent.
Attorneys’ fees are available in cases
brought under 42 U.S.C. sec. 1983
pursuant to 42 U.S.C. sec. 1988. This
court reviews a district court’s award or
denial of fees under sec. 1988 using the
deferential abuse of discretion standard,
unless the decision is challenged on the
basis of a mistake of law. Jaffee v.
Redmond, 142 F.3d 409, 412 (7th Cir.
1998). Our review of a cost award
proceeds under the same standard. Cengr
v. Fusibond Piping Sys., Inc., 135 F.3d
445, 453 (7th Cir. 1998). This standard
makes sense for a number of reasons: the
district court is more familiar with the
work the winning attorneys devoted to the
case; review of a fee petition is a
highly fact-specific exercise; and the
district court has a full appreciation of
both the factual and the legal history of
the case (including those parts that have
dropped out by the time an appeal reaches
this court). In this case, Cicero offered
several reasons before the district court
in opposition to the amount of fees it
awarded: first, it claimed that
plaintiffs did not recover everything
they wanted, including particularly a
preliminary injunction, and that they
should not be compensated for hours spent
on unsuccessful work; second, it argued
that certain fees were duplicative or
excessive; and finally, it noted that
appeal No. 00-3406 was pending and that
there was still a chance that the
plaintiffs might not be "prevailing
parties" if it succeeded here. Argument 3
is obviously no longer available, since
we have decided to affirm the judgment of
the district court in the underlying
case. As for Argument 2, the district
court reviewed the specific entries to
which Cicero objected and found that they
were neither improperly duplicative nor
excessive. After our own review of the
record of this case, we see no reason to
second-guess that decision.
Finally, Argument 1 attacks the degree
of the plaintiffs’ success. While a
district court may not mechanically
reduce a lodestar amount based on the
fact that a plaintiff does not prevail on
every theory and every demand, Cole v.
Wodziak, 169 F.3d 486, 487 (7th Cir.
1999), in some cases plaintiffs prevail
on such an insignificant part of the case
that a district court may make an
adjustment to ensure that compensation is
not awarded for entirely unsuccessful
work, such as a mere recovery of nominal
damages. Id. This, however, is
unequivocally not such a case. The court
rightly rejected Cicero’s argument that
plaintiffs’ failure to win a preliminary
injunction somehow diminished their right
to fees. Given the fact that the
plaintiffs ultimately won an injunction
against the Town, Cicero’s argument rings
hollow. As the district court put it,
"[i]t is the ultimate outcome of the
litigation that determines whether a
plaintiff is a prevailing party, not his
or her success as to each motion filed in
the case." With respect to the damages
award, the fact that the jury did not
award the full amount that the plaintiffs
sought does not automatically mean that
the fees had to be discounted, either.
The jury’s award of $402,000 was
certainly not a nominal one, and the
district court was well within its
discretion to regard this as a bona fide
victory for the plaintiffs. We thus see
no reason to disturb the district court’s
decision to award both the fees and the
costs that the plaintiffs requested.
IV
A jury concluded that the Town of
Cicero, through its President Betty
Loren-Maltese, shut down the business of
the Gonzalez parties for illegitimate and
vindictive reasons. The record contains
more than enough evidence to support this
conclusion. Cicero has not identified any
injury to its substantial rights from the
district court’s evidentiary rulings, and
it has certainly not established that the
district court abused its discretion by
refusing to submit special
interrogatories on damages. Finally, the
district court’s order on attorneys’ fees
and costs was within its discretion. We
therefore Affirm the judgment in No. 00-
3406 and the orders in No. 01-2337.
One last piece of business remains. As
we explained above, Cicero violated
Circuit Rule 30(a) when it failed to
include the district court’s judgment(s)
denying its post-trial motions in its
Rule 30(a) appendix. We have held in the
past that this is sanctionable
misconduct, see Collins v. Educ. Therapy
Ctr., 184 F.3d 617, 622 (7th Cir. 1999).
We hereby issue an ORDER TO SHOW CAUSE to
Cicero to file a memorandum within 10
days of the date of this opinion
explaining why it should not be
sanctioned for this violation of the
rules.