M.R.G. v. Marsh Harbour Maintenance Association, Inc. ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11248
________________________
D.C. Docket No. 9:14-cv-80667-RLR
FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC.,
Plaintiff-Cross Claimant -
Cross Defendant-Appellant,
M.R.G.,
By and through his parent, Meghan Gardner,
LEANN CARR,
A.M.,
By and through his parent, Golda Muselaire,
N.N.,
By and through his Mother, Heather Abrams,
JANET JACKSON,
TA'JENAE WILLIAMS,
J.G.,
By and through his parent, Meghan Gardner,
BRENDA HILL-BLUNTSON,
R.L.,
By and through his parent, Janet Jackson,
MEGHAN GARDNER,
Z.M.,
By and through his parent, Golda Muselaire,
M.J.G.,
By and through his parent, Meghan Gardner,
I.M.,
By and through his parent, Golda Muselaire,
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GOLDA MUSELAIRE,
Plaintiffs-Appellants,
versus
SONOMA BAY COMMUNITY HOMEOWNERS ASSOCIATION, INC.,
a Florida non-profit corporation,
Defendant-Cross Defendant-Appellee,
MARSH HARBOUR MAINTENANCE ASSOCIATION, INC.,
a Florida corporation,
PRESTIGE QUALITY MANAGEMENT, LLC, et al.,
KIMBERLY JACKSON,
JAMES NYQUIST,
Defendants-Appellees,
JONATHAN MERRIGAN,
individually,
EMANUEL MANAGEMENT SERVICES, LLC, et al.,
Defendants,
JEANNE KULICK,
Defendant-Cross Defendant-Appellee,
HI-TEK SECURITY SERVICES, INC.
Defendant-Cross Claimant-Cross Defendant.
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________________________
No. 16-16092
________________________
D.C. Docket No. 9:14-cv-80667-RLR
FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC.,
Plaintiff-Cross Claimant -
Cross Defendant-Appellant,
M.R.G.,
By and through his parent, Meghan Gardner,
LEANN CARR,
A.M.,
By and through his parent,
Golda Muselaire,
N.N.,
By and through his Mother,
Heather Abrams,
JANET JACKSON,
TA'JENAE WILLIAMS,
J.G.,
By and through his parent, Meghan Gardner,
BRENDA HILL-BLUNTSON,
R.L.,
By and through his parent, Janet Jackson,
MEGHAN GARDNER,
Z.M.,
By and through her parent, Golda Muselaire,
M.J.G.,
By and through his parent, Meghan Gardner,
I.M.,
By and through his parent, Golda Muselaire,
GOLDA MUSELAIRE,
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Plaintiffs-Appellants
versus
SONOMA BAY COMMUNITY HOMEOWNERS ASSOCIATION, INC.,
a Florida non-profit corporation, et al.,
Defendants-Cross Defendants-Appellees,
EMANUEL MANAGEMENT SERVICES, LLC,
JONATHAN MERRIGAN,
individually,
MARSH HARBOUR MAINTENANCE ASSOCIATION, INC.,
a Florida corporation,
PRESTIGE QUALITY MANAGEMENT, LLC, et al.,
Defendants-Appellees,
MARSH HARBOUR 1 CONDOMINIUM ASSOCIATION, INC. et al.,
Defendants,
JEANNE KULICK,
Defendant-Cross Defendant,
HI-TEK SECURITY SERVICES, INC.,
a corporation organized under the laws of the State of Florida,
Defendant-Cross Claimant-Cross Defendant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(March 15, 2017)
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Before HULL, MARTIN, and EBEL, * Circuit Judges.
HULL, Circuit Judge:
The plaintiffs are the Fair Housing Center of the Greater Palm Beaches, Inc.
(the “Center”) and a number of current or former residents of the Sonoma Bay and
Marsh Harbour condominium developments (collectively, the “Plaintiffs”). The
Plaintiffs filed this lawsuit against Sonoma Bay Community Homeowners
Association, Inc. (“Sonoma Bay HOA”), Marsh Harbour Maintenance Association,
Inc. (“Marsh Harbour HOA”) (together, the “Associations”), and other related
parties (collectively, the “Defendants”). The Plaintiffs claim that the Defendants
discriminated against families with children in violation of the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq. Following a seven-day trial, a jury rendered a
verdict in favor of the Defendants.
The Plaintiffs appeal the district court’s denial of their motion for a new
trial, primarily challenging the verdict form and the district court’s refusal to give a
jury instruction the Plaintiffs requested. Because the Plaintiffs have not
demonstrated prejudicial and reversible error in the trial, we affirm.
*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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I. THE ASSOCIATIONS’ RULES AND PLAINTIFFS’ COMPLAINT
The Fair Housing Act prohibits discrimination against families with
children. See 42 U.S.C. § 3604 (prohibiting housing discrimination on the basis of
“familial status”); id. § 3602(k) (defining “familial status” as “one or more
individuals (who have not attained the age of 18 years) being domiciled with” a
parent or legal guardian).
The Plaintiffs’ operative complaint alleged familial status discrimination
under two different provisions of the FHA: §§ 3604 (b) and (c).1 Section 3604(b)
makes it unlawful “[t]o discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services or facilities
in connection therewith, because of . . . familial status.” Section 3604(c) makes it
unlawful to “make, print, or publish . . . any notice, statement, or advertisement,
with respect to the sale or rental of a dwelling that indicates any preference,
limitation, or discrimination based on . . . familial status.”
The Plaintiffs’ suit alleged the two Defendant Associations had four policies
that discriminated against families with children in violation of §§ 3604(b) and (c)
and the Florida Fair Housing Act, Fla. Stat. § 760.20 et seq. The parties refer to
these four policies as the “Curfew Rule,” the “Loitering Rule,” the “Proper Attire
1
The Plaintiffs originally brought but later dismissed § 3604(a) claims.
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Rule,” and the “Report Card Requirement” (collectively, the “Rules”). These
Rules state as follows:
• The Curfew Rule – “All persons under the age of 18 must be in their home
or back patio after sunset.”2
• The Loitering Rule – “There will be no loitering—congregating on the
streets of [the development] [—] at any time. After dark all children should
be in their home or on their patio.”
• The Proper Attire Rule – “All Residents must wear proper clothing when
walking on the streets of [Sonoma Bay and Marsh Harbour]. No Boys
should be shirtless and Girls must wear a cover up over a bathing suit when
walking to the pool.”
• The Report Card Requirement – Rental applications from prospective
tenants must include copies of report cards for any person under the age of
18.
The Plaintiffs claimed that the Rules facially discriminated against children and
that the Defendants wrongfully enforced them against only families with children,
entitling the Plaintiffs to compensatory and punitive damages.
In 2014, Marsh Harbour amended its Curfew Rule and Report Card
Requirement. By the time trial began in October 2015, both Marsh Harbour and
Sonoma Bay had entirely eliminated the Loitering Rule, Curfew Rule, and Report
Card Requirement.
As recounted in great detail below, the trial evidence focused on whether,
during 2010 to 2015 (before the elimination of the Rules), the Defendants had
2
The record demonstrates that only the Marsh Harbour Rules and Regulations contained a
separate Curfew Rule, while the Sonoma Bay Rules and Regulations stated, under the heading
“Loitering,” that, “[a]fter dark all children should be in their home or on their patio.”
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enforced these Rules against only children, or against all residents, or at times
against no one at all.
Before reviewing the trial evidence, we first review a pre-trial ruling by the
district court, which the Plaintiffs claim affected their trial presentation.
II. PLAINTIFFS’ SUMMARY JUDGMENT MOTION
Before trial, the parties filed summary judgment motions. Of importance to
this appeal, the Plaintiffs filed a “Motion for Partial Summary Judgment as to
Defendants’ Liability Regarding Written Policies that Violate the Fair Housing
Act.” (Emphasis added). The Plaintiffs’ motion contended that partial summary
judgment was proper because “there are no genuine issues of material fact as to
whether Defendants maintained discriminatory written policies in violation of the
Fair Housing Act.” (Emphasis added). In their prayer for relief, the Plaintiffs
requested that the district court grant their “motion for partial summary judgment
as to liability.”
A. The Report Card Requirement and Proper Attire Rule
The district court denied the Plaintiffs’ motion as to both the Report Card
Requirement and the Proper Attire Rule. The district court observed that the rental
applications also required adults to submit to a background check, such that an
ordinary reader could conclude that “the same type of vetting is being applied to
both adults and children—a type of vetting related to the character of the
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applicant.” An ordinary reader could also conclude that the report card was used
as a means of identification. The district court concluded that “this issue must be
resolved by a trier of fact.”
The district court also noted that there was “sufficient ambiguity in the
meaning of the wording” of the Proper Attire Rule such that it was “unclear”
whether the Plaintiffs had established a “prima facie case of familial
discrimination.” The district court later stated that the language of the Proper
Attire Rule was “unclear” because, while one ordinary reader could conclude that
the Rule’s reference to “Boys” and “Girls” meant only male and female children,
another ordinary reader could conclude that the Rule encompassed all males and
all females. Therefore, the district court concluded that “this issue must be
resolved by a trier of fact.”
B. The Loitering and Curfew Rules
When analyzing the text of the Loitering and Curfew Rules and § 3604(b),
the district court determined that:
Because [these Rules’ restrictions] are limited to children and because
the rules treat children differently than adults—children are essentially
confined to their home after dark—Plaintiffs have, at a minimum,
established a prima facie case of intentional discrimination under
§ 3604(b). The burden therefore shifts to Defendants to articulate “a
legitimate, non-discriminatory justification for the challenged policy.”
Based on the record evidence, the district court found that “the primary
motivations behind Defendants’ Loitering Rule and Curfew Rule were safety
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concerns and crime prevention[.]” The district court also noted, however, that the
Defendants did not provide evidence demonstrating that the children in the
communities had a propensity to commit criminal acts or that the children’s
parents were incapable of supervising their outside activities.
The district court also found that, even if these justifications for the
Loitering and Curfew Rules were satisfactory, “[t]he plain text of the rules
confines children to their home for the duration of the night.” The district court
determined that “there is no reasonable, alternative reading other than (i) the rules
only affect children and (ii) children are treated differently than adults. The
content of the rules is such that an ordinary reader would clearly conclude that the
rules discriminate against children.”
Although the district court determined that the “plain text” of the Rules was
discriminatory, the district court observed that the Defendants provided evidence
that the Rules were not enforced against the Plaintiffs, and that the Plaintiffs’
motion sought no adjudication as to the disputed issue of enforcement or as to the
damages, stating:
Although Defendants have provided evidence that the Loitering Rule
and Curfew Rule were not enforced, this evidence goes to damages
and not to liability. Plaintiffs seek no adjudication with respect to the
manner in which Defendants enforced their Rules and Regulations or
the damages those rules caused.
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Simply put, the district court granted the Motion for Partial Summary Judgment as
to the Plaintiffs’ claim that the plain text of the Loitering and Curfew Rules
violated §§ 3604(b) and (c). Accordingly, the trial then focused on (1) whether the
Defendants enforced these written Rules against only children, against all
residents, or often against no one at all, and (2) if the Defendants enforced the
written Rules against only children, whether the Defendants’ discriminatory
enforcement caused damages. Because the wealth of evidence that the Plaintiffs
presented is critical to the issue of prejudice in this appeal, we recount the relevant
testimony adduced at trial.3
III. PLAINTIFFS’ EVIDENCE AT TRIAL
We start with the testimony of current and former residents of Sonoma Bay
and Marsh Harbour.
A. Testimony From Resident Bluntson
Since March 2011, Brenda Hill Bluntson has been a Sonoma Bay resident.
She has four adult children and ten grandchildren who would come visit her at
Sonoma Bay. Bluntson testified that, shortly after she moved in, the Loitering
Rule was enforced against her family. For example, her grandchildren went
outside to “stretch and play ball and run and so forth.” All of the adults went
3
We do not recount here every detail of the evidence presented at trial nor every witness
presented. For example, the Plaintiffs also presented testimony from two Fair Housing Center
executives regarding the Center’s investigation of Sonoma Bay and Marsh Harbour and
supporting the Center’s claim for damages for diversion of resources and frustration of mission.
But we do recount the trial evidence about enforcement and damages, or lack thereof.
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outside as well. A security guard told them “they had to go in the back.” The
guards were “addressing the grandchildren definitely, [saying] they couldn’t play
out front where we were trying to play, and [they told the] adults, you can’t stand
out.” Bluntson said it made her feel “uncomfortable” and “angry.” Since that
incident, Bluntson has not allowed her grandchildren to go outside. On cross-
examination, however, Bluntson acknowledged that, with respect to the incident,
her grandchildren were playing ball in the street and the security guards asked
them to get out of the street.
Bluntson also admitted that, on a separate occasion, her adult husband and
adult children were sitting on a car, “[l]aughing and carrying on,” and the security
guards told these adults to go inside or go in the back.
Bluntson also testified that, in 2013, the president of the Sonoma Bay Board
of Directors, Jeanne Kulick, sent a security guard to kick her large family out of
the pool area. Bluntson went to confront Kulick, and Kulick told her that “you
have too many people in the pool, and playing ball in the pool and there is a
complaint, and your family has on street clothes in the pool.” Bluntson related that
her adult daughter had on a white T-shirt over her swim suit while in the pool.
Bluntson said the incident at the pool made her feel “hurt” and “uncomfortable.”
She said that, shortly thereafter, she received numerous violation notices in
“retaliation.”
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Bluntson said the Loitering and Curfew Rules had interfered with the
enjoyment of her home. Her grandchildren come over less because “they get tired
of having to be in the house, cooped up all the time.” If Bluntson could afford to
move, she would do so.
B. Testimony From Resident Jackson
Janet Jackson purchased a condo at Sonoma Bay pre-construction which she
occupied in 2011 or 2012. Jackson testified that, on an unspecified date, Jackson’s
minor son, Richard, ran across the street to greet a friend. While they were talking,
Kulick drove up and “asked what they were doing out there.” Kulick told the
children “to go in the house and play video games.” Jackson then told her son to
go inside because she “didn’t want no problems.” Her son Richard was upset and
could not understand why he could not play outside. Jackson never observed the
security guards at Sonoma Bay tell an adult to go inside, but she did observe them
telling children to go inside. Jackson moved out of Sonoma Bay the weekend
before trial. On cross-examination, Jackson admitted that Richard would play
tennis at Sonoma Bay, play kickball in front of her house, and ride bikes and play
with his friends around the neighborhood.
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C. Testimony From Resident Carr
From April 2012 until April 2015, Leann Carr was a resident at Sonoma
Bay. She lived with her teenage grandson, Nathan, whom she had raised since
birth.
In early 2013, Carr received her first violation notice after Nathan and his
friends “had been out on a weekend night, early in the morning, in our driveway
sitting in his car with the windows rolled up listening to music.” Carr and Nathan
went to speak with Kulick about the notice. Kulick told them “children aren’t
supposed to be out after sunset.” The confrontation escalated until Kulick retreated
to her office. Kulick then came back out with a copy of the rules and regulations,
and went over the rules with Carr and Nathan. According to Carr, “she read me
every rule and regulation, and after each one she would say, do you understand,
and I said yes.” This made Carr feel like she “was a 12 year old.” Carr said that
Kulick spoke to her “like I was one of her students . . . like one, two, three, you are
going to do it this way or not at all.” The confrontation left Carr feeling
“humiliated [and] embarrassed.”
In November 2013, Carr received another violation notice when Nathan was
making too much noise while skateboarding. Carr admitted that she took the
notice to Sonoma Bay’s then-property manager, Niambi Emanuel, who told her
that it was a courtesy notice and that she should disregard it. Carr said children at
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Sonoma Bay were “alienated” from other children. Parents would try to keep their
kids inside, but, “kids being kids, they would climb out their windows to go to
each others’ rooms, that is how they visited each other.”
Carr said the Rules affected her relationship with Nathan: “It caused a lot of
arguments between us that we never had. He had a very structured life and he
would start questioning my rules . . . . [H]e respected authority, but when authority
keeps brow beating you, I could see that [respect for authority] lessening and
lessening in him.” According to Carr, Nathan became so “upset” by living at
Sonoma Bay that in November 2014 he went to live with his mother. She said that
Nathan “was afraid he was putting so much stress on [Carr] and he didn’t want
[Carr] to get evicted and he was beat down with rules and regulations that he could
not do nothing, and he was a teenage boy, he wanted to have his friends over and
go out and do things.” Carr said Nathan was currently living with his mother and
had dropped out of both high school and the ROTC. Carr said that Nathan’s
situation made her feel “horrible” because “he doesn’t have a home.”
On cross-examination, Carr admitted that Nathan’s mother regained custody
of him in 2013 and that Carr had unsuccessfully fought for custody. In
contradiction to her trial testimony, Carr also stated in her deposition that she was
concerned about crime in the neighborhood. The first year Carr lived at Sonoma
Bay, she had a 500-pound safe stolen from her garage. Carr also admitted that
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Nathan was once stopped by a community security guard and was accused of
cursing at the guard. Defendants’ counsel asked if she was aware that Nathan had
been in “dozens of fist fights.” Carr said she was not. Counsel also produced a
document showing that Carr received the first notice of violation not just for
Nathan’s loitering but also for Carr’s own loud argument with a neighbor.
D. Testimony From Resident Golda Muselaire
From 2014 to 2015, Golda Muselaire lived in Marsh Harbour with her
husband and three children. Muselaire testified that the Rules were enforced
against her family. For example, a security guard once reprimanded one of her
children for riding his bike in the street. Her children could play outside if they
were supervised by an adult, but this “aggravated” her because she wanted to rest
while her kids played outside. Muselaire said the Rules forced her to be “really,
really on [her children], I didn’t want them to break any rules and the security
guards harass them.” Muselaire said this made her feel like she was “hovering
over them, [like] they can’t breathe.” Muselaire said the Rules also affected her
children—they started to rebel and sneak out to play. Her family moved because
the private owner of their unit raised the rent.
E. Testimony From Resident Isaiah Muselaire
Golda Muselaire’s son, Isaiah Muselaire (age 15) testified that he had the
Loitering and Curfew Rules enforced against him “multiple times” when his family
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lived at Marsh Harbour from 2014 to 2015. For example, Isaiah and his friends
were once playing football when a security guard told them that, if they did not get
on the sidewalk, he would give them a violation. Another time, Isaiah and a friend
were sitting on a green electrical box when the security guard gave the friend a
violation and Isaiah a verbal warning. 4 Isaiah also recounted one time when he
and some other kids were in the “park up front by the clubhouse” and the security
guard “told us to go inside because it was getting late, it was past the curfew, and
he didn’t say nothing to the adults [who were also outside].”
Isaiah would hide in a tree to talk to his friends “because if we even talk on
the sidewalk or by the grass, [a security guard] would harass us, like why are you
loitering.” Isaiah said being stopped so often by the security guards made him feel
“depressed and ma[d]e [him] want to rebel more.” After his mother learned of the
altercations with the security guards, she made her kids stay inside to avoid getting
“kicked out,” but this dictate made Isaiah “feel like [he] was in jail.” Isaiah said
the Rules made his mom “overwhelmed and frustrated” because she “wanted her
space.”
On cross-examination, Isaiah admitted that, while living at Marsh Harbour,
he would play football on the street with his friends, swim at the pool, play in the
grassy areas, and ride bikes or skateboards in the street.
4
The Marsh Harbour Loitering Rule specifically prohibited sitting on the electrical boxes
in the neighborhood.
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F. Testimony From Resident Gardner
Meghan Gardner is the mother of six children. From 2014 to 2015, she lived
at Marsh Harbour. Gardner alleged that James Nyquist, who was at one point the
Marsh Harbour property manager, told her that the Report Card Requirement was
in place to find out “if the kids go to alternative schools . . . and he was trying to
clean up the neighborhood.” Nyquist also allegedly told her that six violation
notices would lead to eviction.
Gardner testified that the Rules were enforced against her family. For
example, one time, two of her sons were riding their bikes, and the security guard
told them to go on the sidewalk. Another time, her kids were on the driveway, and
the guard told them they could not play outside. Gardner said these incidents made
her feel “hurt, sad and embarrassed.” Gardner testified that the Curfew Rule was
enforced against her children five or six times. Gardner received six violation
notices while living at Marsh Harbour, including one for an infraction of the
Loitering Rule. Gardner was afraid of eviction “[a]ll of the time” because she had
six citations and “there were so many rules, it was always harassing the kids.”
Gardner said her kids were “always crying to me and tell[ing] me they feel like
they are in jail. They want to go outside and ride their bikes, they want to be kids,
they want to have fun, they want to go in the driveway and play without being
harassed by security guards or HOA.”
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G. Testimony From Resident Williams
Ta’Jenae Williams, Gardner’s daughter, was 17 when her family lived at
Marsh Harbour. Williams said that her family received the Rules at their
orientation with Nyquist. Williams said the Curfew Rule was enforced against her
“plenty of times . . . too [many] to count.” For example, on the night she turned
18, Williams went out with friends, but the security guard would not let her
through the gate without an ID. Williams would often do her homework on the
patio, and a security guard once told her to go inside. This made her feel
“extremely upset, uncomfortable, awful.”
Williams testified that the Loitering Rule was enforced against her when she
and her brother went bike riding with a friend. The chain on the friend’s bike
broke at a location with no sidewalks. When the security guard saw the children in
the streets, he threated the friend with a fine. “After that, we couldn’t go outside
no more.” Williams said living at Marsh Harbour made her feel “[h]orrible, guilty,
depressed, angry.” She could not decorate a float in her front yard. Williams was
on the track team and could not run around the neighborhood. She felt angry that
her siblings could not play outside, and she felt guilty for leading her mom to
Marsh Harbour in the first place.
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H. Testimony From Residents Jermaine and Marcell Griffin
Jermaine Griffin (age 16) testified. He is Gardner’s son and Williams’s
brother. Jermaine did not like living at Marsh Harbour because he was “stuck
inside most of the time, and when [he] was allowed outside, [he] was told by
someone what [he] can and what [he] can’t do.” One time, Jermaine was walking
home from the school bus when Kimberly Jackson, the property manager at Marsh
Harbour, asked him what he was doing and rudely told him he better get where he
was going. Jermaine also said a security guard once told him and his sister to ride
their bicycles on sidewalks only. He testified that the Curfew Rule was enforced
against him once when he was walking to a friend’s house; a security guard told
him he was out past curfew and had to go home. On cross-examination, Jermaine
admitted that he would play in his driveway and on the sidewalk. Jermaine also
admitted to sneaking out of his house and getting stopped by a security guard and
also by the police.
Marcell Griffin (age 12), another of Gardner’s sons, testified. said he did
not like living at Marsh Harbour because he “couldn’t be a kid.” Marcell was once
riding his bike on the sidewalk, but the sidewalk ended. Security told him to get
back on the sidewalk, “so I didn’t bother, so I went back home.” This made him
“sad, angry and bored because I was used to riding my bike in the neighborhood,
and now I have to stay inside and be bored.” Marcell also said that one time he
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was bouncing a ball in front of his house when the ball rolled into the street.
Security told him to take the ball inside. After that day, he says he never went
back outside.
The Plaintiffs also called three property managers: James Nyquist, Niambi
Emanuel, and Kimberly Jackson.
I. Testimony from Property Manager Nyquist
James Nyquist was the property manager5 at Sonoma Bay from early 2010
until mid-2012, and he was also the property manager at Marsh Harbour from early
2010 until mid-2013. In his role as property manager, Nyquist considered himself
an agent of the Associations and reported to each community’s Board of Directors.
The Boards made the ultimate decision about what community rules to adopt,
although Nyquist could review, comment, and advise on those rules. Nyquist
reviewed the rules and regulations with new tenants at an orientation once their
application was approved.
In April 2010, the resident Associations took over control of the properties
from the developer and put in place a “simplified” screening process—checking
credit scores, income, and criminal records. As property manager, Nyquist was in
charge of assembling a complete tenant application package and submitting it to
5
All of the property managers were Community Association Managers (“CAMs”), a
position created by Florida law requiring certification and continuing education.
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the Board for approval. Nyquist had no power to approve or reject tenant
applications.
According to Nyquist, the Report Card Requirement was put in place
(1) because some parents did not have birth certificates for their children and (2) to
discourage applicants from lying about whether certain occupants were children in
order to avoid the criminal record check. Nyquist testified that the report card was
a stand-in for other age identifiers, such as a birth certificate, because the child’s
school level gave a rough idea of the child’s age. Nyquist also testified that the
Board did not look at the child’s grades when determining whether to approve an
application.
According to Nyquist, Kulick, the president of the Sonoma Bay Board, came
up with many of the Rules at issue here.6 Nyquist then imported the Rules to
Marsh Harbour. The properties enacted the Loitering and Curfew Rules because
“they had a lot of issues with cleaning up the community.” Nyquist stated that
“every single day there were three to five break-ins.” Nyquist personally observed
people climbing the perimeter fence and the pool fence and causing damage.
Nyquist would tour the property, he would “see kids hiding behind the building,
vacant units, and you go back later in the day and the door is busted open and the
6
Nyquist testified that, prior to implementing the Curfew Rule at either property, he was
aware that the City of Riviera Beach, Florida (where the properties were located) had an
ordinance mandating a curfew for young people. Nyquist admitted that the Riviera Beach
ordinance, unlike the Curfew Rules, gave very specific curfew times.
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glass is all shattered.” So, according to Nyquist, the Board “was taking action not
to try and stop people from being outside necessarily, it was to stop the crime in
the community. The point of the rule was so that we would stop having people
hide and breaking into units.” Additionally, the Loitering Rule prohibited playing
in the street because cars would speed down the neighborhood’s streets, which was
a safety hazard for children.
Nyquist testified that the two properties enforced the Loitering and Curfew
Rules against both children and adults and neither Rule was strictly enforced. The
Rules were enforced first through a verbal communication, followed by “courtesy
notices,” followed by “violation letters if we have a continued problem.” Nyquist
did not issue notices of violation for people who were walking, jogging, or riding a
bike. As for the Curfew Rule, security guards were encouraged to escort kids
home at night for their safety, but they were “told not to bother people, it was only
if there was a problem, the hiding situation.”
According to Nyquist, the properties never rejected a prospective renter
because they had children, never failed to renew a lease based on familial status,
never evicted a tenant based on familial status, and never evicted, threatened to
evict, or failed to renew a lease for violations of the Rules.
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J. Testimony From Property Manager Emanuel
Niambi Emanuel was originally Nyquist’s assistant. When Nyquist left
Sonoma Bay in July 2012, Emanuel and her company, Emanuel Management
Services, took over as property manager. Like Nyquist before her, Emanuel
reported to the Sonoma Bay Board, but she did not serve on the Board and did not
have a vote on the Board. In March 2014, President Kulick fired Emanuel as
property manager.
In spite of her “concerns” about the Report Card requirement, Emanuel
gathered report cards from prospective tenants throughout her tenure at Sonoma
Bay. Kulick was on the committee that screened applications. According to
Emanuel, Kulick would review the report cards submitted with applications to see
if the children had good grades and behavior. On certain occasions, Kulick would
tell a parent that their child’s grades were “not good,” and the parent should “get
some help for the student.” To Emanuel’s knowledge, Kulick did this to help the
children. Kulick instituted an after-school tutoring program for children in the
community, and Kulick would turn over the report cards to them.
As part of her job duties, Emanuel would send out notices of violation to
residents. While an assistant to Mr. Nyquist (in 2011) until she left Sonoma Bay in
March 2014, Emanuel issued approximately 20 notices per month, typically for
violations of the rules concerning trash and clutter on patios.
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According to Emanuel, the reason for the Loitering and Curfew Rules was
community safety. If Emanuel observed children playing outside at night, she
would simply tell them to move to a grassy area or behind their home. Emanuel
never told children playing in the community that they could not play outside or
that they must go inside. She never personally enforced the Curfew Rule.
K. Testimony from Property Manager Jackson
Kimberly Jackson, the property manager at Marsh Harbour who succeeded
Nyquist, also testified. Jackson worked through defendant Prestige Quality
Management, LLC, the entity that contracted with the Marsh Harbour HOA for her
services. According to the contract, she would handle and enforce any violations
of the community rules and regulations on behalf of the Board of Directors.
Like Nyquist before her, Jackson was in charge of facilitating rental
applications at Marsh Harbour. Jackson would collect the information from
prospective tenants and submit their applications to Patricia Makarowa, the
President of the Marsh Harbour HOA. Makarowa and/or Jackson would then
determine whether to approve the applications. Until shortly before trial, Marsh
Harbour collected report cards from prospective tenant families. Jackson
explained that the report card “gives you an idea of the [child’s] age because it lists
the grade.” Marsh Harbour never looked at grades or behavior when reviewing an
application.
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Jackson would conduct orientation with new tenants, where she would
explain the rules, but she stressed that the tenants “would have . . . signed off on
the rules prior to the orientation.”
Jackson testified that enforcement of the Loitering and Curfew Rules was
“very lax.” 7 Jackson said, “There was no real enforcement of the loitering issue
other than a verbal warning about the dangers of playing football in the street or if
someone was in the community that was not supposed to be there.” As to the
Curfew Rule, “[t]here is no enforcement.” Marsh Harbour did not instruct the
guards to tell children not to play outside and never instructed the guards to target
children. Jackson never personally told a child to go home and never heard of
anyone telling a child to go home. Jackson said the Loitering Rule was enforced
against adults and children. Jackson also insisted that the Proper Attire Rule was
always enforced against all residents.
Jackson testified that Marsh Harbour had never denied an application
because the applicant had children, never evicted a resident based on familial
status, never fined a resident for a Rules violation, never evicted or threatened to
7
While there was evidence that Marsh Harbour terminated one family’s lease based, in
part, on violation of the Loitering Rule, Jackson explained that this particular family was evicted
due to numerous serious incidents and “nuisance behavior,” including one incident when the two
young children were spotted near a snake and alligator-infested lake unsupervised, an incident
when the police and the state Department of Children and Families were called, and another
incident where the child vandalized property.
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evict a resident for a Rules violation, and never failed to renew a lease based on a
Rules violation.
IV. DEFENDANTS’ EVIDENCE AT TRIAL
Although the Plaintiffs had called property managers Nyquist, Emanuel, and
Jackson as witnesses during their own case in chief, the Defendants had previewed
their defense during cross-examination of those witnesses. During that cross-
examination, these witnesses had already testified that the security guards and
property managers enforced these Rules against both adults and children and that
often the Rules were not strictly enforced.
After the Plaintiffs rested, the Defendants also presented testimony from
Patricia Makarowa, the President of the Marsh Harbour Board. Makarowa testified
that Marsh Harbour put the Rules in place in 2011 based on those implemented at
Sonoma Bay.
The Defendants also called Kulick, who similarly denied that the Rules were
enforced against only families with children. In 2002, Kulick and her husband
moved to Florida. A retired teacher, Kulick got her realtor’s license in 2005.
Kulick purchased a property at Sonoma Bay in 2005, but she does not live there.
In April 2010, Kulick became the Sonoma Bay Board president. By that time, her
Sonoma Bay property had depreciated in value from $215,000 or $225,000 to
$26,000.
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In 2005 and 2006, Sonoma Bay was in a dilapidated condition—holes in the
fences, dead plants, overflowing dumpsters inhabited by rats, mice, and vermin.
Kulick saw drug paraphernalia and spark plugs (used to smash sliding glass doors)
littering the property. Kulick also saw “[g]rown people . . . gambling on the
electrical boxes. Adults were playing football in the street, scratching cars, didn’t
matter where the ball went.” Kulick testified that crime was a problem, with
people squatting in vacant units or using vacant units for drugs and sex. In 2010,
Sonoma Bay had more than $200,000 worth of code violations.
Kulick made it her mission to clean up the community and resurrect property
values. Kulick met with city officials and law enforcement officers. She had a
manned guard gate installed, hired a security company, and instituted a new tenant
application process.
Kulick insisted that the reason for the Report Card Requirement was to
gauge the child’s age. Sonoma Bay never rejected an applicant because of a
child’s bad grades or behavior or because the applicant was a single parent.
Kulick’s version of the enforcement of the Loitering and Curfew Rules was
quite different from that of the Plaintiff residents. Under Kulick’s watch, the
Sonoma Bay Board implemented the Loitering Rule. Kulick explained that the
Loitering Rule was meant to address adults gambling on the electrical boxes and
drinking on the hood of their car “in order to watch you leave for work so they
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could rob [your home] five seconds after you are gone.” Kulick never told
children they could not play outside and was not aware of anyone telling children
they could not play outside. Kulick specifically denied telling a child to “go inside
and play video games.”
Kulick instituted a tutoring program for children at Sonoma Bay. Plaintiff
Janet Jackson gave tennis lesson to the kids who were in tutoring. In 2010 and
2011, Sonoma Bay offered basketball clinics for children.
Kulick testified that the Sonoma Bay HOA (1) never targeted or attempted
to “weed out” families with children; (2) a prospective tenant was never rejected
based on familial status; and (3) no tenant was ever evicted or had their lease non-
renewed based on familial status.
Kulick stated that Sonoma Bay had “done what was impossible. We took a
community in distress and brought it back to life. We enabled people to feel safe.”
According to Kulick, Sonoma Bay’s occupancy rate went from 30 to 90 percent
and property values rose 300 percent.
The Defendants’ evidence also stressed that the majority of residents were
families with children and that there was no evidence that anyone was ever denied
an apartment or evicted because they had children. For example, the trial evidence
showed that, out of the 302 units at Sonoma Bay, 70 to 80 percent of those
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consisted of families with children, and of the 402 units at Marsh Harbour, 75
percent consisted of families with children.
After the Defendants rested, the Plaintiffs re-called Janet Jackson to testify
in rebuttal. Jackson admitted that she was aware of the tutoring program and that
she gave tennis lessons to children at Sonoma Bay “so they won’t be harassed by
security.” She denied ever discussing the tutoring program with Kulick. The
Plaintiffs presented no other rebuttal testimony.
V. THE JURY INSTRUCTIONS
Because this appeal concerns one particular jury instruction, we now review
in detail what occurred about that.
Twice the district court refused the Plaintiffs’ request to charge the jury that
the Defendants had already been held “liable” as a matter of law and the only issue
for the jury was the amount of damages to award. The first time occurred before
opening statements. Five days before trial, the Plaintiffs filed the following
proposed preliminary jury instruction and asked the district court to tell the jury
that the only issue was monetary damages, as follows:
Prior to this trial the Court has made the following legal rulings:
(1) the Sonoma Bay Curfew Rule violates the Fair Housing laws as a
matter of law; (2) the Sonoma Bay Loitering Rule violates the Fair
Housing laws a matter of law; (3) the Marsh Harbor (sic) Curfew Rule
violates the Fair Housing laws as a matter of law; and (4) the Marsh
Harbor (sic) Loitering Rule violates the Fair Housing laws as a matter
of law. (citing to the district court’s summary judgment order)
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With respect to these four Rules, the Sonoma Bay Curfew Rule, the
Sonoma Bay Loitering Rule, the Marsh Harbor (sic) Curfew Rule, and
the Marsh Harbor (sic) Loitering Rule, you the jury do not have to
determine whether or not these Rules are unlawful, because the Court
already has. The Court has determined that these Rules violate the
federal and state fair housing laws. Because of this finding by the
Court, you the jury need only determine the monetary damages to the
Fair Housing Center and Plaintiffs that should be awarded to fully
remedy the effects of these illegal practices. (Emphasis added).
At the start of the trial and before opening statements, the district court declined to
give this jury instruction.
Again at the end of the trial, and during the October 21 charge conference
before closing statements, the district court denied a similar request. This time, the
Plaintiffs asked the court to charge the jury that: “Plaintiffs, at a minimum, have
established a prima facie case of intentional discrimination with the restrictions
placed on children regarding the Loitering and Curfew Rules at Sonoma Bay and
Marsh Harbour.” The Plaintiffs asked for this charge because the district court’s
order had said the “plain text” of those two Rules discriminates against children
and established a prima facie case.
During the charge conference, the district court stated that, with respect to
where the Court was going to address its previous ruling, it “might have a better
answer or thought on it once I look at the verdict form.” Plaintiffs’ counsel
responded that, “If we address them in the verdict forms, that is fine.” (Emphasis
added).
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On that same day, October 21, the Plaintiffs filed a proposed verdict form
that would state that the court had already found the Defendants “liable,” as
follows:
1. The Court has previously found Defendant [Sonoma Bay HOA]
liable for violations under the Fair Housing Act with respect to the
Curfew Rule and Loitering Rule. Do you find that the Defendant
[Sonoma Bay HOA] is liable to Plaintiff . . . for any other
violations of the Fair Housing Act?
2. The Court has previously found Defendant [Marsh Harbour HOA]
liable for violations under the Fair Housing Act with respect to the
Curfew Rule and Loitering Rule. Do you find that the Defendant
[Marsh Harbour HOA] is liable to Plaintiff . . . for any other
violations of the Fair Housing Act?
Defense counsel objected to the “liable” language in this verdict form,
arguing that, “you haven’t found us liable. Liable suggests that there is damages to
be awarded. I don’t think Your Honor found any damages should be awarded or
proven to be awarded or suggesting that damages should be awarded. I think the
word liable would suggest to this jury that Your Honor is basically telling them to
award damages.”
Working off of the Plaintiffs’ proposed verdict form, the following exchange
then occurred between the court and both parties’ counsel:
The Court: It probably is a more accurate statement to say the Court has
previously found that – the formal title of the rules and
regulations that relate to the curfew rule and loitering rule –
violate the Fair Housing Act.
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Defense Counsel: I have been waiting my turn, I do want to speak on that issue. I
think that is fairer, I clearly don’t like the word liable. The way
I read your order, as Your Honor wrote it, the Plaintiff still has
to prove damages for there to be liability.
The Court: You[] are correct on that. Does Plaintiff disagree? That is a
correct statement.
Plaintiff Counsel: Sure, we are not saying the Court is determining damages.
The Court: The question is, how do we correctly state that?
Plaintiff Counsel: We are comfortable with what you said. The reason why we
used that language, it was used in the District Court . . . Our
preference would be the liable language, that is what was done
in the district, but we’ll accept the language you propose.
Defense Counsel: Any verdict form of Your Honor’s finding unduly prejudices
my client or puts emphasis –
The Court: You already made that argument known, the Court overruled
that argument. The Court is going to address it in the verdict
form in a way that it is not prejudicial, but an accurate
statement of the law. The Court has taken it out as a second
reference on page two, but the Court is going to mention it. It
is not unusual when Courts have made findings that go to what
the jury has to address, and so that is why I said I was going to
wait for the verdict form so I know the context in which this
issue is being raised. I have taken it out of the jury instructions,
but we do know that there is a finding that -- on one or two of
the rules the Court has made a finding. The jury has to make a
determination whether there are any other violations they find,
yes or no, and what compensatory damages. If there is no
mention of it, and the jury is asked do you find the Defendant
Marsh Harbour is liable to [Plaintiff] and they say no without
ever knowing that there is a finding that two of the rules of
Marsh Harbour have been found as a matter of law to violate
the Fair Housing Act, I don’t think that is an accurate outcome
either. The Court is attempting to do it in a non-prejudicial
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accurate way. I will hear you on any proposed language given
that the Court is going to address it.
....
Defense Counsel: I think what Your Honor found, not in the enforcement, Your
Honor found that in the wording of the document there was a
violation of the Fair Housing law. There are two aspects being
brought in this case, one is with regard to the wording, and one
with regard to the enforcement. I don’t believe, I could be
wrong, but Your Honor meant to find our clients in the
enforcement breached it. I think you had -- facially.
The Court: Facially, yes. Do you have proposed language? . . . [T]he Court
has accepted your position with respect to liability. So, do you
have proposed language?
Defense Counsel: I don’t have proposed language but the concept -- the Court
found the language on its face violates the Fair Housing law. I
actually think that is what you found, and I think Your Honor
left open for the jury to decide whether there is liability, but that
is what I think Your Honor said. I would ask Your Honor to
use that language. Your Honor ruled, I am accepting it, but to
use that language as relates to this so we can argue, irrespective
of what is on the document, there is not a violation. I think that
is the argument to be made for the jury. Facially, on its face,
those are Your Honor’s words.
....
Plaintiff Counsel: I read your order several times and I don’t remember it being in
there at all. This is ironic concerning the positions you have
been hearing the last few days. One reason we drafted it this
way, we thought they would agree to it because we thought we
were accommodating the concerns they made. You have taken
it out of the jury instruction and taking out the liable language,
and adding on its face could be confusing to the jury and a term
of art. I think we should be moving on.
The Court: Well, I am not going to keep the language liable.
Plaintiff Counsel: No, I understand that.
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The Court: I am going to work on the language, but it will be something
along the lines of the Court has found that the rules and
regulations -- and again, it will be the formal title -- we'll say
for discussion purposes, that relate to the curfew rule and the
loitering rule, it might be something along the lines, the Court
has found the language of the rules and regulations relating to
the curfew rule and loitering rule violate the Fair Housing Act.
(Emphasis added).
The district court determined that it would use the Plaintiffs’ proposed
verdict form, “with the change in the language, with respect to the Court has found
the language of the rules and regulations . . . relating to the curfew rule [and] the
loitering rule violates FHA[.]” The district court directed the Plaintiffs to amend
the verdict forms accordingly and disseminate them to all parties. The next
morning, before the court’s final jury instructions and closing arguments, all
parties had copies of the final jury instructions and verdict forms.
The final verdict forms 8 explained that the language of the Loitering and
Curfew Rules violated the FHA, but left it to the jury to decide if the Defendants
had enforced the Rules and were liable to the Plaintiffs. The verdict forms stated:
1. The Court has found that the language of the Loitering section of
the Sonoma Bay Rules and Regulations violates the Fair Housing
Act. Do you find that the Defendant [Sonoma Bay HOA] is liable
to Plaintiff . . . for that violation and/or any other violations of the
Fair Housing Act?
8
There were verdict forms for each plaintiff containing basically identical language.
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2. The Court has found that the language of the Loitering and Curfew
sections of the Marsh Harbour Rules and Regulations violates the
Fair Housing Act. Do you find that the Defendant [Marsh Harbour
HOA] is liable to Plaintiff . . . for that violation and/or any other
violations of the Fair Housing Act?
In other words, the text or content violated the FHA, but the parties hotly disputed
whether the Defendants had enforced these Rules against all residents, not just
children. The jury returned verdicts in favor of all Defendants and awarded the
Plaintiffs no damages.
VI. DISTRICT COURT’S OMNIBUS ORDER
Following the jury’s verdict, the Plaintiffs filed numerous post-trial motions,
which the district court resolved in an omnibus order. district court’s omnibus
order pointed out that, “In that [earlier partial summary judgment] order, the Court
held that only a trier of fact could determine whether Defendants’ Report Card
Requirement and Proper Attire Rule violated the Fair Housing Act.”
As to the Loitering and Curfew Rules, the district court’s omnibus order
explained that the district court’s earlier order had found the text of the Rules
violated the Act but had “left the ultimate determination of liability and damages”
to the jury, stating:
The Court did find, however, that the text of the Curfew Rule and the
Loitering Rule violated the Fair Housing Act. Notwithstanding the
Court’s conclusion that the text of those rules violated the Fair
Housing Act, the Court left the ultimate determination of liability and
damages to the trier of fact.
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The district court’s omnibus order recapped how the Plaintiffs argued at trial
that the district court’s earlier ruling meant that the jury had to determine only
damages as to the Loitering and Curfew Rules. This, according to the district
court, was a mistake: “While the Court had previously held that the text of [those
two Rules] did violate the FHA, this violation is not equivalent to a finding of
liability under the FHA.”
The district court’s omnibus order further explained that the sentence from
its earlier order that the Defendants’ evidence of enforcement went to “damages
and not to liability” “did not signal that Defendants were liable—as reiterated by
the Court at trial. Instead, this sentence (when properly viewed in context) merely
disregarded Defendants’ arguments as inapplicable in the context of whether or not
the Loitering Rule and Curfew Rule—in the abstract—violated the FHA. The
Court’s ruling was very narrow and was limited to the text of the rules and not to a
finding of liability.”
The district court’s omnibus order also explained why its earlier order did
not directly entitle the Plaintiffs to relief:
The Center’s position and apparent confusion in this matter
stems from a certain disconnect in its motion for partial summary
judgment. While the argument in the Center’s motion focused on
whether the text of Defendants’ rules violated the FHA, the Center’s
prayer for relief sought a determination of liability. The disconnect,
then, was causation. Implicit in the Center’s reasoning was (i) if a
rule violates the FHA, and (ii) the rule was published by the
Defendant, then (iii) the publishing Defendant is liable to a fair
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housing center. Not so. The statute governing remedies under the
FHA merely states that certain remedies “may” flow from a violation
and, moreover, case law establishes . . . that the existence of a rule
that violates the FHA is not, by itself and without more, sufficient to
impose liability.
While there were no disputed material facts at summary
judgment as to whether Defendants’ rules were published, there was a
dispute of material fact as to what impact those rules had on Plaintiffs
and on the community as a whole. Indeed, Defendants’ enforcement
of the rules was a hotly and vigorously contested issue that resulted in
extensive testimony at trial. The impact of Defendants’ rules on the
community was a hotly contested issue also. To the extent the Center
takes the position that, independent of any dispute of material fact
pertaining to causation, the existence of certain rules caused it
damages as a matter of law at summary judgment, or, alternatively,
that the Center was not required to prove causation at summary
judgment, these positions contravene the law. (Emphasis added).
In support, the district court pointed to Martin v. Palm Beach Atlantic Ass’n,
Inc., 696 So. 2d 919, 922-23 (Fla. Dist. Ct. App. 1997) (finding that a
condominium association’s rule facially violated the FHA but stating that the
association’s contention that it did not intend to discriminate “may be considered
by the jury as to the issues of damages and their causation”) and Blomgren v. Ogle,
850 F. Supp. 1427, 1440 (E.D. Wash. 1993) (holding that, while an apartment’s
rule discriminated on its face, damages “may be imposed only where there is
credible proof of harm proximately caused by the violation”). Thus, the district
court’s omnibus order explained:
While the text of the Loitering Rule and the Curfew Rule in the
instant case patently discriminated against children, the application
and enforcement of those rules were left to the jury to determine
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causation and damages and, as a result, the jury—not the Court—
determined Defendants’ liability. (Emphasis added)
Because evidence was introduced that the Rules applied to all residents, the
district court’s omnibus order rejected the Plaintiffs’ argument that the trial
evidence proved that the Rules were enforced in a discriminatory manner, stating:
It was within the jury’s purview to conclude that there were no
discriminatory acts sufficient to cause the Center any damages or, at a
minimum, to conclude that the Center did not meet its burden to
establish such. The Defendants in this case were accused of
discrimination against children. Notwithstanding this serious
allegation, approximately eighty percent of the families residing in
Defendants’ complexes had children. The Center emphasizes that this
evidence means many families experienced discrimination. That is
one interpretation. Another plausible inference from this evidence is
that many families chose to live there, chose to stay. Families
renewed their leases. An extremely small percentage of families
residing at the Defendant communities chose to join this lawsuit.
Evidence was introduced that the controversial rules were intended to
benefit children. Evidence was introduced that the rules were applied
uniformly to all residents—not just children[.] (Emphasis added).
The district court’s omnibus order thus denied the Plaintiffs’ post-trial motions,
including their motion for a new trial.
The Plaintiffs timely filed this appeal. On appeal, the Plaintiffs do not
challenge the jury’s verdict as to the Report Card Requirement or Proper Attire
Rule. Rather, the Plaintiffs seek a new trial on their claims about the Loitering and
Curfew Rules. The Plaintiffs argue that the district court should have told the jury
that the Defendants’ Loitering and Curfew Rules made them liable to the Plaintiffs
as a matter of law and that the only issue for the jury was the amount of damages.
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The Plaintiffs argue the district court erred by not telling the jury this in the jury
charge or at least in the verdict forms.
VII. STANDARD OF REVIEW
This Court will not disturb a jury’s verdict unless the charge, taken as a
whole, is “erroneous and prejudicial.” Bhogaita v. Altamonte Heights Condo.
Ass’n, Inc., 765 F.3d 1277, 1290 (11th Cir. 2014) (citing Badger v. So. Farm
Bureau Life Ins. Co., 612 F.3d 1334, 1339 (11th Cir. 2010)); see also United States
v. House, 684 F.3d 1173, 1196 (11th Cir. 2012) (“We will not reverse a
defendant’s conviction based on a challenge to the jury charge unless we are left
with a substantial and ineradicable doubt as to whether the jury was properly
guided in its deliberations.”) (internal quotation marks omitted). We apply a
similarly deferential standard of review to verdict forms. McNely v. Ocala Star-
Banner Corp., 99 F.3d 1068, 1072 (11th Cir. 1996).
When reviewing a trial court’s jury instruction, “our task is to examine
whether the jury charges, considered as a whole, sufficiently instructed the jury so
that the jurors understood the issues and were not misled.” Palmer v. Bd. of
Regents, 208 F.3d 969, 973 (11th Cir. 2000) (quotation omitted). Reversal is
warranted only if the failure to give an instruction prejudiced the requesting party.
Id. at 973, 975 (affirming jury verdict in favor of defendant in Title VII
discrimination case because “we cannot say, considering the totality of the
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circumstances, that [the plaintiff] was prejudiced by the trial court’s refusal to
deliver the specific instructions proposed by her.”). “Jury instructions are subject
to harmless error review.” United States v. Webb, 655 F.3d 1238, 1249 n.8 (11th
Cir. 2011).
VIII. ANALYSIS
With this extensive background, we turn to the two questions before us: Did
the district court err? And did any error prejudice the Plaintiffs? See Bhogaita,
765 F.3d at 1290.
A. Error
Whether there was error depends on whether we accept (1) the district
court’s reading of its own summary judgment order (which is also the Defendants’
reading), or (2) the Plaintiffs’ reading of that order. Frankly, that is a close and
difficult question, because the district court’s order is ambiguous. Certain
language in the district court’s order strongly supports the district court’s and the
Defendants’ reading of the order. On the other hand, when the district court’s
order is read together with the prayer for relief in the Plaintiffs’ motion, the answer
becomes less clear. At the end of the day, we need not decide or resolve the error
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question because the Plaintiffs have failed to show any alleged error was
sufficiently prejudicial to warrant a new trial here.9 We explain why.
B. Fairness and Prejudice
Our analysis starts with the principle that an FHA damages claim is, in
effect, a tort action governed by general tort rules, and “proximate cause is a
classic element of a tort claim.” City of Miami v. Bank of Am. Corp., 800 F.3d
1262, 1279 (11th Cir. 2015) (citing Meyer v. Holley, 537 U.S. 280, 285, 123 S. Ct.
824, 828-29 (2003)) and Curtis v. Loether, 415 U.S. 189, 195, 94 S. Ct. 1005, 1009
(1974) (“A damages action under [the FHA] sounds basically in tort—the statute
merely defines a new legal duty, and authorizes the courts to compensate a plaintiff
for the injury caused by the defendant’s wrongful breach.”) (internal alteration
omitted), cert. granted, 136 S. Ct. 2544 (2016). 10 Therefore, this Court has held
9
The Defendants argue that we may affirm because the Plaintiffs invited any error by
explicitly agreeing to (1) handle the issue not in the jury instruction but in the verdict form and
(2) then by ultimately agreeing to the change in the verdict form. “When a party responds to a
court’s proposed jury instructions with the words ‘the instruction is acceptable to us,’ such action
constitutes invited error” and “serve[s] to waive [the party’s] right to challenge the accepted
instruction on appeal.” United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005); see also
United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010) (“Frank invited error when he not
only agreed with the supplemental instructions and special verdict form, but requested them.”).
The Plaintiffs counter that the Defendants misconstrue the record and point out that they
did not have a copy of the final verdict form during the charge conference. We need not address
invited error because the Plaintiffs, in any event, have not shown the requisite prejudice.
10
In its certiorari grant, the Supreme Court stated “[t]he questions presented are as
follows:
1. By limiting suit to ‘aggrieved person[s],’ did Congress require that an FHA
plaintiff plead more than just Article III injury-in-fact?
2. The FHA requires plaintiffs to plead proximate cause. Does proximate cause
require more than just the possibility that a defendant could have foreseen that the
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that proximate cause, as a classic part of a tort claim, is a “required element of a
damages claim under the FHA.” Id. at 1278-80.
And to prove proximate cause, the Plaintiffs had to show the Rules were
enforced against only families with children and caused damages to the Plaintiffs.
As recounted above, the Plaintiffs’ evidence at trial was all about proving that the
Rules were enforced against them.
As the district court observed, the factual issues of whether the Defendants
enforced the Rules and the impact of such enforcement on the individual Plaintiffs
and the community at large were “hotly and vigorously” contested at trial. As
recounted above, nearly every witness who testified at trial spoke about these
issues. The property managers spoke about how they enforced the Rules against
all residents and how at times the Loitering and Curfew Rules were not enforced at
all. The Plaintiffs produced testimony from ten residents, adults and children alike,
who testified about how the Rules were routinely enforced against only families
with children and how it made them feel angry, sad, embarrassed, cooped up, and
bored. Kulick testified extensively about how she went about implementing the
Rules, and she also denied that they were enforced in a discriminatory manner.
remote plaintiff might ultimately lose money through some theoretical chain of
contingencies?”
(Emphasis added). While these two questions are not at issue here, it is noteworthy the Supreme
Court made clear again that proximate cause is an element of an FHA damages claim.
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Thus, the record reflects that the Plaintiffs were allowed to put on a robust
and fulsome case regarding whether, and in what manner, the facially illegal Rules
were enforced and thereby caused residents any damages. In short, causation is an
intensely factual question that was presented to, and decided by, the jury. Indeed,
the Plaintiffs’ own brief on appeal contends that their “case in chief as to the
Loitering and Curfew Rules focused on enforcement and the emotional distress
experienced by the families who lived under the regime of the Rules as well as the
economic damages they suffered.”
Given this fulsome presentation of evidence, it is hardly surprising that on
appeal the Plaintiffs do not point to or disclose any probative evidence that they
failed to present due to the district court’s earlier partial summary judgment
order. 11
Instead, the Plaintiffs point to two instances of testimony that they claim
were “misleading.” First, they argue that Vince Larkins, the Center’s president and
CEO, was “hamstrung” in his testimony because he was forced to describe the
Rules as “allegedly” discriminatory, resulting in a “necessarily halting”
explanation that “infected the jury’s deliberations with substantial confusion.”
Plaintiffs point to a single sentence in Larkins’s testimony: “Well, we have to
11
The Plaintiffs argue that causation is part of the remedy phase of trial, not part of the
liability determination. The Defendants counter that causation goes to liability, not damages.
We need not decide that narrow question because the Plaintiffs do not point to any evidence of
causation that they failed to present either before or after the district court’s ruling.
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continue to monitor because of many of the—I am trying to be careful because I
don’t want to over step what the judge has said—so I will state that many of the
alleged acts that we alleged are in violation of the Fair Housing Act still are in
place.” Larkins’s single sentence that used the term “alleged” was not damaging to
Plaintiffs considering the seven-day course of the trial. This argument also ignores
that the verdict form told the jury that the district court had found that the language
of the Loitering and Curfew Rules violated the FHA.
Second, Plaintiffs argue that the jury was “susceptible to spurious
suggestions by Defense counsel that the Loitering Rule was not discriminatory,”
citing to an exchange during cross-examination of Bobbie Fletcher, the Center’s
Vice President. That exchange, in relevant part, consisted of the following:
Q. You called it familial status discrimination?
A. I don’t call it that. It is a federal law. . . .
Q. There was an issue about kids playing in the street; am I
correct?
A. I don’t recall an allegation of children playing in the street.
Q. Or limitation to prevent kids, in all fairness --
A. Well, to be precise, loitering, meaning the ability for children to
congregate.
Q. You would agree with me that the purpose, your understanding
-- I am not asking for legal conclusions, but as the individual in
charge of enforcement, the Plaintiff organization, that if
somebody -- everybody is treated the same, if there are a lot of
rules, but it applies to everybody, that wouldn't be
discrimination, correct, in your opinion?
[Objection from Plaintiffs’ Counsel]
THE COURT: Overruled.
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Q. Do you understand my question?
A. Well, if I may, I think I will keep to why we filed the lawsuit.
It was in reference to the documents that—the fact of the rules
and regulations that were implicit to children under 18.
Defense counsel then moved on to another line of questions.
This example is not convincing either. Defense counsel’s question was
proper and about equal enforcement, which was a theme of Defendants’ case. In
any event, these two isolated incidents do not demonstrate substantial prejudice to
Plaintiffs.
Plaintiffs’ additional prejudice arguments consist of speculation about what
the jury “could have” believed or inferred. For example, Plaintiffs argue that,
without a preliminary instruction that the Loitering and Curfew Rules were facially
discriminatory, the jury was not “properly equipped” to consider the testimony
from current and former residents about the emotional pain and mental anguish
they suffered. Again, this ignores that the verdict form told the jury that the district
court had found that the language of the Loitering and Curfew sections of the
Rules violated the FHA. Both the evidence and counsel’s arguments focused on
whether those two Rules were enforced against all residents, against only families
with children, or sometimes against no one at all. The Plaintiffs’ “speculation” that
the jury misunderstood the case is not supported by the record or sufficient to
demonstrate prejudice.
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In sum, the district court expressly told the jury that the language of the
Rules violated the FHA. Even at a new trial, the Plaintiffs would still need to
prove enforcement, causation, and damages at trial—exactly what they attempted
to do in the first trial. Without a showing of prejudice, we cannot find any
reversible error. See Bhogaita, 765 F.3d at 1290; see also Watkins v. City of
Montgomery, 775 F.3d 1280, 1290 (11th Cir. 2014) (explaining that district court
abuses its discretion in failing to give a requested jury instruction only when such
failure resulted in prejudicial harm to the requesting party). 12
Our precedent instructs us not to disturb a jury’s verdict unless the jury
instructions, taken as a whole, are “erroneous and prejudicial.” Bhogaita, 765 F.3d
at 1290. Thus, we will not overturn the jury’s verdict, rendered at the end of a
seven-day trial, unless the Plaintiffs can show that the district court’s alleged error
prejudiced them and affected their substantial rights. This they did not do.
C. Final Observations
Before closing, we briefly pause to respond to certain arguments made in the
dissent. The dissent acknowledges that proximate causation is a required element
12
The Plaintiffs’ arguments also ignore that, even if their reading of the district court’s
order is more reasonable than the district court’s reading of its own order, and even if the
Plaintiffs on appeal obtain a new trial, the district court retains authority to vacate and reenter its
partial summary judgment order before any new trial and to clarify any ambiguity in its earlier
partial summary judgment order. In the district court (or even in their briefs on appeal) the
Plaintiffs did not point to, much less proffer, any evidence that they would have presented at the
first trial (or even in a new trial) if the Plaintiffs had understood better and sooner what the
district court had ruled in its earlier partial summary judgment order.
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of a damages claim under § 3604(b) and that the plaintiffs knew they had to
present evidence of causation and injury and did so. But the dissent then argues
that proximate causation is not an element of a damages claim under § 3604(c).
This argument is mistaken. Our Court has noted the requirement of a causal
connection in a § 3604(c) case, albeit in a non-published, non-binding opinion.
Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. The Shutters Condo. Ass’n,
Inc., 389 F. App’x 952, 955-56 (11th Cir. 2010).
In that FHA case, brought by the same plaintiff Center, the advertisement
published by the defendant, The Shutters Condominium Association, said, “Sorry
no kids or pets.” Id. at 953, 954. This advertisement, like the Loitering and
Curfew Rules here, was facially discriminatory against families with children in
violation of § 3604(c). On appeal, the plaintiff Center challenged the jury’s
“decision that it was not injured by the publication of [this] advertisement” that
discriminated based on familial status under § 3604(c). Id. at 955. In affirming the
jury’s verdict in that § 3604(c) case, this Court pointed to the scant evidence of the
“causal connection” between the discriminatory advertisement itself and the
alleged damages:
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 . . . . The Center
complained about injuries it suffered as a result of the advertisement,
but the Center offered scant evidence about its damages.
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Id. at 955-56 (citation omitted). 13
Similarly, the Plaintiffs here claimed the existence of the facially
discriminatory Loitering and Curfew Rules had caused substantial injuries and
damages to all 500 families. For example, in closing arguments, the Plaintiffs
requested the jury to award what they called a $1,000 fine times 500 families living
in the two developments (which meant $500,000) to “compensate the families to
make them whole and compensate the [Fair Housing Center].” The sizable
compensatory damages that Plaintiffs wanted were not just for the individual
Plaintiff residents who testified about enforcement of the Rules against them and
their own personal emotional pain, but also for all the 500 resident families due to
the existence of discriminatory rules whose language violated the FHA. 14 The
verdict form even told the jury that the language of the Rules violated the FHA. 15
13
The dissent relies on Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir.
1993), but in that case the Second Circuit discussed the need to prove causation between the
publication of a discriminatory advertisement and the emotional distress alleged by the plaintiffs.
See 6 F.3d at 907. There, the plaintiffs had appealed because the district court had found only a
small amount in damages for the emotional distress they suffered that “was directly attributable,
at least in part,” to the defendants’ advertisements. Id. at 901, 907. In affirming, the Second
Circuit said: “The district court’s findings with respect to the issue of causation were based on its
assessment of the plaintiffs’ credibility. After reviewing the trial transcript, we see no basis for
disturbing the district court’s assessment of the plaintiffs’ credibility.” Id. at 908.
14
It was undisputed that residents were given a copy of the Rules when they moved in.
15
No part of the jury charge required the Plaintiffs to prove intent or enforcement as to
their § 3604(c) claim. Rather, the district court told the jury that (1) it was a separate violation of
the FHA to make a statement with respect to housing rental that indicates any preference,
limitation, or discrimination based on familial status; and (2) that the FHA prohibits such
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As to the § 3604(c) claim, the jury may have reasonably concluded the Plaintiffs
failed to show a causal connection between the mere publication of the Rules
(which the Defendants had eliminated before trial) and the Plaintiffs’ alleged
substantial damages.
Tellingly, too, the Plaintiffs still have not pointed to, much less proffered,
evidence they would have presented at the first trial (or even a new trial) if
Plaintiffs had understood better and sooner what the district court had ruled in its
earlier summary judgment motion. Indeed, the dissent is left to point to merely a
comment at oral argument by Plaintiffs’ counsel that he would have asked different
questions of one witness, President Makarowa. But there is no description or
proffer of what that alleged additional or different testimony of Makarowa would
have been.
IX. CONCLUSION
For the foregoing reasons, we discern no reversible error in the lengthy
proceedings and trial before the district court. Accordingly, we affirm. 16
AFFIRMED.
discriminatory statements, “whether or not the Defendant intended to express a preference or
limitation.” Then the verdict form even told the jury that the language of the Rules violated the
FHA.
16
The Plaintiffs have not shown reversible error on the other issues raised in their brief,
either. As the parties have agreed, our affirmance of the final judgment in Case No. 16-11248 is
also determinative of Case No. 16-16092. Accordingly, the appeal in Case No. 16-16092 is
dismissed, and the cost judgment entered by the district court remains intact.
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MARTIN, Circuit Judge, dissenting:
The Fair Housing Center of the Greater Palm Beaches together with people
who live in and are members of two condominium associations brought this suit
against those associations. Plaintiffs allege violations of the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq. The plaintiffs say the defendants, Sonoma Bay
Community Homeowners Association, Inc. and Marsh Harbour Maintenance
Association, Inc. (the Associations), had policies that discriminated against
families with children, thereby violating FHA §§ 3604(b) and (c).
Before their case went to trial, the plaintiffs filed a summary judgment
motion, asking the court to find the Associations liable, as a matter of law, on all of
plaintiffs’ FHA claims. The District Court granted plaintiffs’ motion as to two of
the FHA claims. With this ruling, the parties proceeded to trial. In light of the
court’s holding that defendants were liable for some of their discriminatory
policies, the plaintiffs went to trial understanding that, as to those policies, they
needed to prove only the injuries that flowed from the discriminatory policies and
what damages were appropriate. Indeed the court admonished plaintiffs at the start
of trial that they should not present evidence on those issues the court had already
decided on summary judgment.
But then, after the plaintiffs rested their case, the District Court changed
course. The court refused to instruct the jury that it had already found the
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Associations to be liable on some claims. And to the contrary, the court submitted
the question of liability to the jury, even for the policies the court had already
found to violate the FHA as a matter of law. The jury then found the defendants
not liable on all claims and awarded no damages.
I disagree with the Majority’s summary affirmance of what happened here,
and write to explain why.
I.
A.
The Fair Housing Act prohibits discrimination against families with
children. See 42 U.S.C. § 3604 (prohibiting housing discrimination on the basis of
“familial status”); id. § 3602(k) (defining “familial status” as “one or more
individuals (who have not attained the age of 18 years) being domiciled with” a
parent or legal guardian). One purpose of this law is to ensure that families with
children have the same access to housing as people who have no children. See
Seniors Civil Liberties Ass’n v. Kemp, 965 F.2d 1030, 1035 (11th Cir. 1992) (per
curiam).
The plaintiffs alleged familial status discrimination under two different
provisions of the FHA: §§ 3604(b) and (c). Section 3604(b) makes it unlawful
“[t]o discriminate against any person in the terms, conditions, or privileges of sale
or rental of a dwelling, or in the provision of services or facilities in connection
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therewith, because of . . . familial status.” Section 3604(c) makes it unlawful to
“make, print, or publish . . . any notice, statement, or advertisement, with respect to
the sale or rental of a dwelling that indicates any preference, limitation, or
discrimination based on . . . familial status.” Generally, § 3604(b) prohibits the
actual act of discriminating against families with children while § 3604(c) prohibits
making a statement that indicates a preference against families with children.
The plaintiffs’ suit alleged the Associations had four policies that
discriminated against families with children in violation of §§ 3604(b) and (c).
The parties refer to these four policies as the “Curfew Rule,” the “Loitering Rule,”
the “Proper Attire Rule,” and the “Report Card Requirement.” These rules set the
following restrictions and requirements:
• The Curfew Rule – “All persons under the age of 18 must be in their home
or back patio after sunset.”
• The Loitering Rule – “There will be no loitering—congregating on the
streets of [the development] [—] at any time. After dark all children should
be in their home or on their patio.”
• The Proper Attire Rule – “All Residents must wear proper clothing when
walking on the streets of [Sonoma Bay and Marsh Harbour]. No Boys
should be shirtless and Girls must wear a cover up over a bathing suit when
walking to the pool.”
• The Report Card Requirement – Rental applications from prospective
tenants must include copies of report cards for any person under the age of
18.
B.
In August 2015, the plaintiffs asked the court to rule in their favor “as to
liability” on all claims and as a matter of law. The plaintiffs styled their motion as
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“Motion for Partial Summary Judgment as to Defendants’ Liability.” The motion
explained that by “mov[ing] for summary judgment as to liability for specific
illegal and undisputed written policies,” the plaintiffs hoped “to streamline the
trial.” In seeking summary judgment “as to liability,” the plaintiffs made clear
they “do not seek summary judgment as to the[] remedial issues” of “monetary
damages and injunctive relief.” The plaintiffs further explained, “If this motion is
granted, Plaintiff’s [sic] shall present, at a time to be set by the Court, facts to
support entry of the requested relief.”
The District Court granted in part and denied in part plaintiffs’ motion for
summary judgment. The court granted judgment for the plaintiffs as to the
Loitering and Curfew Rules, holding that the Loitering and Curfew Rules violated
§§ 3604(b) and (c) as a matter of law. But the court denied judgment as to the
Proper Attire Rule and Report Card Requirement.
In doing its § 3604(b) analysis, the court first found that the plaintiffs
“established a prima facie case of intentional discrimination” because the Loitering
and Curfew Rules’ restrictions on children “are limited to children and . . . treat
children differently than adults—children are essentially confined to their home
after dark.” Then the court turned to the Associations’ proffered legitimate
nondiscriminatory justifications for the policies: “safety concerns and crime
prevention.” The court rejected these justifications. Safety and crime prevention
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“are not legitimate” justifications in this case, the court reasoned, because
“[d]efendants provide no concrete evidence of statistics or arrest records showing
that the children in their communities were so heavily predisposed to crime that
mass confinement of those children was in response to a legitimate safety
concern.” “Evidence of this sort is what the law requires because a legitimate
justification cannot be based on mere stereotypes.” The court concluded that “[t]he
discrimination inherent in these provisions is patently obvious.”
For the § 3604(c) claim, the District Court found that “there is no
reasonable, alternative reading [of the Loitering and Curfew Rules] other than (i)
the rules only affect children and (ii) children are treated differently than adults.
The content of the rules is such that an ordinary reader would clearly conclude that
the rules discriminate against children.”
The court observed that defendants had “provided evidence that the
Loitering Rule and Curfew Rule were not enforced,” but, the court explained, this
did not preclude summary judgment because “this evidence goes to damages and
not to liability.” (Emphasis added.)
C.
In October 2015, the parties gathered for a trial before a jury. Before that
trial, plaintiffs asked the court to give this preliminary jury instruction:
With respect to [the Loitering and Curfew Rules], you the jury do not
have to determine whether or not these Rules are unlawful, because
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the Court already has. The Court has determined that these Rules
violate the federal and state fair housing laws. Because of this finding
by the Court, you the jury need only determine the monetary damages
to the Fair Housing Center and Plaintiffs that should be awarded to
fully remedy the effects of these illegal practices.
Without explanation, the District Court declined to give this instruction. Beyond
that, in the preliminary instructions it did give the jury, the court never mentioned
that it had already decided the issue of liability for the Loitering and Curfew
policies.
Then at the start of the trial (outside the presence of the jury), plaintiffs’
counsel asked the court to allow him to discuss “the Court’s order concerning the
curfew rule and loitering rule being unlawful” in his opening argument. The court
denied the request. The court went on to rule that it would “not permit any
discussion about pretrial rulings” from either party or from any witness during
trial. Yet, at the same time, the court assured plaintiffs that the jury would not be
asked to decide issues already resolved by the court as a matter of law in its
summary judgment ruling. Specifically, the court told the plaintiffs: “[Y]ou don’t
need to present evidence or determine those issues as the judge already has.” In
compliance with the court’s instruction that plaintiffs should not present evidence
on liability for the Loitering and Curfew Rules, the plaintiffs’ case-in-chief on
those rules was devoted to proving damages. The plaintiffs presented evidence of
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the defendants’ enforcement of the rules 1; the families’ emotional distress from
living under the rules; and the Fair Housing Center’s efforts to combat the effects
of the rules.2
In discussing the final jury instructions on the fifth day of trial, the plaintiffs
again asked the District Court to tell the jury about its finding of liability. The
court denied this request. As a result, the final jury instructions made no mention
of the court’s earlier ruling on the Loitering and Curfew Rules; the fact that the
court found these rules to violate the FHA as a matter of law; or that liability had
been established as to those two rules.
The plaintiffs’ last attempt to have the court tell the jury about its ruling on
liability was by way of a requested special-interrogatory verdict form. The
plaintiffs’ proposed verdict form asked the jury these questions:
The Court has previously found Defendant Sonoma Bay Community
Homeowners Association, Inc. liable for violations under the Fair
Housing Act with respect to the Curfew Rule and Loitering Rule. Do
you find that the Defendant Sonoma Bay Community Homeowners
Association, Inc. is liable to Plaintiff Fair Housing Center of the
Greater Palm Beaches, Inc. for any other violations of the Fair
Housing Act? 3
1
This, of course, was in keeping with the District Court’s observation in its summary
judgment ruling that the question of whether the Associations enforced the rules it had found to
be discriminatory went to the issue of damages rather than liability.
2
A fair housing organization is entitled to recover damages for the diversion of its
resources to combat a defendant’s discrimination. See Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder
Realty Co., 236 F.3d 629, 642 (11th Cir. 2000).
3
The proposed verdict form contained a second, identical question for Defendant Marsh
Harbour.
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...
[P]lease assign an amount of compensatory damages to Plaintiff Fair
Housing Center of the Greater Palm Beaches, Inc., for . . . [t]he
injuries caused by the discriminatory acts by Sonoma Bay Community
Homeowners Association Inc. and Marsh Harbour Maintenance
Association, Inc., which the Court has previously found both liable for
violations under the Fair Housing Act with respect to the Curfew Rule
and Loitering Rule.
The District Court rejected these questions. Instead, the court placed this question
in the verdict form:
The Court has found that the language of the Loitering section of the
Sonoma Bay Rules and Regulations violates the Fair Housing Act. Do
you find that the Defendant Sonoma Bay Community Homeowners
Association, Inc. is liable to Plaintiff Fair Housing Center of the
Greater Palm Beaches, Inc. for that violation and/or any other
violations of the Fair Housing Act?”4
...
If your answer . . . is yes, please state the amount of compensatory
damages, if any, to be awarded . . . .
(Emphasis added.)
There is, of course, a critical difference between the verdict form the
plaintiffs proposed and the one the court used. The plaintiffs wanted the verdict
form to tell the jury the court had already found the defendants liable for the
Loitering and Curfew Rules and that, for those two rules, the jury needed to decide
only whether to award damages. But instead, the verdict form told the jury the
court had decided only one element of liability—that “the language of the [rules]
violates the [FHA].” And the jury was instructed to decide the issue of liability
4
The verdict form contained a second, identical question for Defendant Marsh Harbour.
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itself. In explaining why it was rejecting the plaintiffs’ proposed verdict form, the
court said: “It probably is a more accurate statement to say the Court has
previously found that—the formal title of the rules and regulations that relate to the
curfew rule and loitering rule—violate the Fair Housing Act.” The court agreed
with the defendants that “the Plaintiff still has to prove damages for there to be
liability.”
The District Court’s ruling that the jury would decide liability for the
Loitering and Curfew Rules was made after the close of evidence. This meant the
plaintiffs had no opportunity to put on more evidence after they learned of the
court’s decision to let the jury decide liability. Once the question was submitted to
the jury, it returned a verdict finding no liability against either defendant for any of
the four policies it considered. It therefore awarded no damages.
D.
After the trial, the plaintiffs filed a Motion for New Trial, arguing that the
jury was not properly informed of the court’s prior ruling on the Loitering Rule
and the Curfew Rule. The court entered what it called an Omnibus Order on Post-
Trial Motions denying the motion for new trial. In denying the motion for new
trial, the court offered the following explanation for the inconsistency between its
summary judgment decision and the verdict form:
Notwithstanding the Court’s conclusion [at summary judgment] that
the text of those rules violated the Fair Housing Act, the Court left the
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ultimate determination of liability and damages to the trier of fact. . . .
The Center misconstrued the Court’s [summary judgment] rulings.
While the Court had [] held that the text of certain rules, the Loitering
Rule and the Curfew Rule, did violate the FHA, this violation is not
equivalent to a finding of liability under the FHA.
...
While the text of the Loitering Rule and the Curfew Rule in the
instant case patently discriminated against children, the application
and enforcement of those rules were left to the jury to determine
causation and damages and, as a result, the jury—not the Court—
determined Defendants’ liability.
The court insisted in the post-trial order that its “[summary judgment] ruling was
very narrow and was limited to the text of the rules and not to a finding of
liability.”
After the District Court denied plaintiffs’ motion for new trial, they filed this
appeal. They argue here that the District Court erred by refusing to instruct the
jury that the issue of liability for the Loitering and Curfew Rules was decided
before the trial and by using a verdict form that called on the jury to decide the
already-resolved issue of liability for those rules.
II.
We review the district court’s refusal to give a proposed jury instruction for
an abuse of discretion. Watkins v. City of Montgomery, 775 F.3d 1280, 1289
(11th Cir. 2014). We will not reverse unless the court’s jury instructions, taken as
a whole, were both erroneous and prejudicial. SEC v. Yun, 327 F.3d 1263, 1281
(11th Cir. 2003); Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991)
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(per curiam). In reviewing jury instructions for error, we “must ensure that the
instructions show no tendency to confuse or to mislead the jury with respect to the
applicable principles of law.” Gulf Life Ins. Co. v. Folsom, 907 F.2d 1115, 1121
(11th Cir. 1990) (quotation omitted) (emphasis added). If “there is uncertainty as
to whether the jury was actually misled, the [court’s] erroneous instruction cannot
be ruled harmless.” Busby, 931 F.2d at 777 (quotation omitted).
The same standard of review that applies to jury instructions also applies to
special-interrogatory verdict forms. Eskra v. Provident Life & Acc. Ins. Co., 125
F.3d 1406, 1415 (11th Cir. 1997).
III.
I believe the District Court committed two errors which require reversal.
First, the court refused to inform the jury that the court had already found the
defendants liable for the Loitering and Curfew Rules. Second, the court required
the jury to decide the issue of liability for the Loitering and Curfew Rules even
though the court had already decided that issue at summary judgment. These
errors can be remedied only by a new trial for plaintiffs.
A.
It is beyond question that the District Court’s summary judgment order
decided the issue of the defendants’ liability for the Loitering and Curfew Rules.
A cursory review of the text of the summary judgment motion, and the order
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granting that motion, demonstrates this fact. The relief requested in the plaintiffs’
motion is clear: the plaintiffs said they “move for summary judgment as to
liability.” Doc. 280 at 4 (emphasis added); see also id. at 15 (“[P]laintiffs
respectfully request that the Court grant its motion for partial summary judgment
as to liability.”). In ruling on this request, the court’s order framed the question as
follows: “[w]hether defendants have violated 42 U.S.C. § 3604(b) as a matter of
law.” In response, the court concluded: “Plaintiffs’ Motion for Partial Summary
Judgment is GRANTED as to the Loitering Rule and Curfew Rule.” The court
reached the same conclusion for the § 3604(c) claim. Then, in the Conclusion of
the order, the District Court reiterated: “The [plaintiffs’] Motion is GRANTED as
to plaintiffs’ arguments under 42 U.S.C. § 3604(b) as to the Loitering Rule and
Curfew Rule” and “is GRANTED as to Plaintiffs’ arguments under 42 U.S.C. §
3604(c) as to the Loitering Rule and Curfew Rule.” Because plaintiffs plainly
moved for summary judgment “as to liability” under §§ 3604(b) and (c), and
because the court’s order granted that part of their motion—without qualification
or limitation—the court’s order clearly granted summary judgment on liability.
Then in its Omnibus Order, issued months after the trial was over, the
District Court characterized its summary judgment decision as a “very narrow”
ruling finding that “the text of . . . the Loitering Rule and the Curfew Rule[] did
violate the FHA, [but that] this violation is not equivalent to a finding of liability”
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because the court’s decision “left [it] to the jury to determine causation and
damages and, as a result, the jury—not the Court—determined Defendants’
liability.” But nothing in the court’s summary judgment ruling said this. And even
in its Omnibus Order, the District Court acknowledged that the plaintiffs’ “prayer
for relief sought a determination of liability.” Nowhere in its summary judgment
order did the court even hint that it was leaving the decision about liability on the
Loitering and Curfew Rules for the jury because that decision hinged on evidence
of causation of injury which the court was not deciding. To the contrary, the one
time the court referred to “liability,” it said exactly the opposite. Right before
granting summary judgment “as to the Loitering Rule and Curfew Rule” under
§ 3604(b), the court acknowledged the defendants had “provided evidence that the
Loitering Rule and Curfew Rule were not enforced,” but the court dismissed this
evidence as irrelevant because “this evidence goes to damages and not to liability.”
(Emphasis added.) With this statement, the court made clear that (1) it was
adjudicating liability in its summary judgment order, and (2) the defendants’
evidence that the discriminatory rules were not enforced, so no injury resulted, was
irrelevant to the issue of liability then before the court.
I do not argue that the District Court could not have properly ruled in the
way its Omnibus Order characterized its summary judgment ruling. I only say that
plaintiffs were entitled to know what had been ruled on before the trial began, so
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they could prepare and present their evidence on liability to the jury hearing the
case. My review of the record tells me that plaintiffs properly abided by the
instruction of the District Court that prohibited “any discussion about pretrial
rulings” in front of the jury, based on the court’s reasoning that plaintiffs “don’t
need to present evidence or determine those issues as the judge already has.”
When the court then switched course after the close of evidence, and submitted
those very issues to the jury to decide, it wrongly deprived plaintiffs of the
opportunity to offer proof of their claims.
B.
Because the District Court decided the defendants’ liability for the Loitering
and Curfew Rules as a matter of law, the court needed to tell the jury it had already
found the defendants liable for those rules. Instead, the first and only time the jury
was ever made aware of the court’s prior ruling was in the verdict form. 5
Curiously, the District Court told the parties it “was going to wait for the verdict
form” to mention its summary judgment finding, and so had “taken it out of the
jury instructions.”
It was an abuse of discretion not to inform the jury that the issue of liability
for two of the four challenged policies had been decided prior to trial. The Seventh
5
When the court did finally mention its ruling on the Loitering and Curfew Rules in the
verdict form, the wording used in the verdict form significantly departed from its summary
judgment decision. I view this as a second and separate reversible error, which I discuss below.
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Circuit once addressed a similar circumstance, stating that because “the
defendants’ liability was settled by summary judgment. . . . [t]he defendants’
liability had already been established[,] [s]o this stage of the litigation should have
only been about quantifying [the plaintiffs’] damages.” Guzman v. City of
Chicago, 689 F.3d 740, 745 (7th Cir. 2012) (reversing jury verdict and granting
new trial where the district court instructed the jury to adjudicate liability after the
court had already determined liability at summary judgment).
It is critical that a court inform the parties what facts they will be required to
prove at trial. Also, this trial court opted to give the jury preliminary instructions
about the case it would be deciding. Certainly the jury would have been aided in
knowing what facts it would be charged with deciding. Without being advised
about the court’s pretrial rulings, it was no doubt difficult for this jury to make
sense of the plaintiffs’ silence about the unlawfulness of two of the challenged
policies. And because the jury had not been told that the Loitering and Curfew
Rules violated §§ 3604(b) and (c) as a matter of law, it was susceptible to Defense
counsel’s repeated suggestions that the rules were not discriminatory. For
example, in his opening argument Defense counsel told the jury that the plaintiffs
“accuse” defendants of FHA violations and “accuse them of passing” the Loitering
Rule. Much to the contrary, the Loitering Rule was not alleged to be an FHA
violation, but it had already been proved a violation as a matter of law.
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Defense counsel also argued to the jury that “the purpose of the [Loitering
Rule] was not to discriminate, but to promote safety in the community.” But again,
the District Court had already rejected that theory as a matter of law. Then, in
cross-examining one of plaintiffs’ witnesses, Defense counsel suggested “[it]
wouldn’t be discrimination” if the Loitering Rule “treated [everybody] the same.”
And in his closing argument, Defense counsel said, “We have seen zero evidence
in this case of discrimination[.]” All of these statements directly contradict the
District Court’s summary judgment decision. But because the court refused to
instruct the jury on its liability determination (or allow plaintiffs’ counsel to
mention it), these erroneous statements were never corrected. These gaps in the
evidence surely contributed to the jury’s verdict absolving the defendants of all
liability.
This court’s job in reviewing jury instructions for error is to “ensure that the
instructions show no tendency to confuse or to mislead the jury.” Gulf, 907 F.2d at
1121 (quotation omitted) (emphasis added). It seems to me the lack of an
instruction on the court’s liability determination created, at least, a “tendency to
confuse” the jury—and, more likely, a virtual certainty of confusion as to its proper
role.
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C.
After the presentation of evidence was closed and over plaintiffs’ objection,
the court decided to use the following special interrogatory in the verdict form:
The Court has found that the language of the Loitering section of the
Sonoma Bay Rules and Regulations violates the Fair Housing Act.
Do you find that the Defendant Sonoma Bay Community
Homeowners Association, Inc. is liable to Plaintiff Fair Housing
Center of the Greater Palm Beaches, Inc. for that violation and/or any
other violations of the Fair Housing Act?”
(Emphasis added.)
With this verdict form, the District Court required the jury to again decide
the issue of liability for the Loitering and Curfew Rules the court had already
decided. I see this as a second error justifying a new trial. Because the verdict
form asked the jury to adjudicate the defendants’ liability for the Loitering and
Curfew Rules after the court had already ruled them liable for those rules as a
matter of law, the verdict form effectively vacated the court’s summary judgment
decision. And it did so after the evidence was closed, and without any ability for
plaintiffs to reopen the case to present their case on liability. This process stripped
the plaintiffs of the judgment they won as a matter of law and that the defendants
had never even challenged.
If during the trial, the District Court changed its mind about its summary
judgment ruling, it should have expressly vacated that decision and allowed
plaintiffs’ counsel to put on evidence on the question of liability. If the Defendants
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thought the District Court erred in its summary judgment ruling, they should have
moved for reconsideration of that ruling before trial. Neither of these things
happened. At the time the parties went to trial, the summary judgment decision
was the District Court’s last word on the subject of liability. Then, as the trial
began, the District Court assured plaintiffs that they could rely on the summary
judgment decision, telling them: “[Y]ou don’t need to present evidence or
determine those issues as the judge already has.” Adhering to this instruction, the
plaintiffs did not present evidence of defendants’ liability for the Loitering and
Curfew Rules. Then the court’s verdict form put before the jury the very issues the
plaintiffs had been admonished not to talk about. And with little to no evidence of
liability, and no explanation for the dearth, the jury—not surprisingly—found the
defendants not liable.
In my view, the District Court unfairly clipped the wings of the plaintiffs in
the trial we review here. As a result, I would grant the plaintiffs a new trial.
IV.
The Majority turns away the plaintiffs’ attempt to retry their case. It does
this without deciding whether the District Court committed error when it
determined liability for the Loitering and Curfew Rules at the summary judgment
stage but then allowed the jury to decide it again. My colleagues say they don’t
need to reach the issue of whether there was error because the plaintiffs have not
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shown they suffered prejudice. The Majority’s holding that plaintiffs were not
prejudiced is hard to explain and I reject it.
As I understand it, the Majority’s holding rests on four propositions: (1) that
in order to establish liability, the plaintiffs had to prove proximate causation—i.e.,
that the defendants’ unlawful policies caused them harm; (2) that the plaintiffs had
a full and fair opportunity to present evidence of causation; (3) that the plaintiffs
failed to convince the jury of causation; and (4) that since the jury ruled against the
plaintiffs on the issue of causation, the plaintiffs would have lost no matter what
errors the District Court may have made in other areas of the trial, so any error is
harmless.
This line of reasoning goes astray right from the start. The Majority begins
its prejudice analysis by observing that, under City of Miami v. Bank of Am.
Corp., 800 F.3d 1262 (11th Cir. 2015), proximate cause is a “required element of a
damages claim under the FHA.” Id. at 1278; see Maj. Op. at 44. This reliance on
City of Miami is misplaced. City of Miami held that in order to plead a viable
§ 3604(b) claim, a plaintiff must allege an injury that was proximately caused by
the discriminatory act. See City of Miami, 800 F.3d at 1278–82. But the question
of what is necessary for § 3604(b) liability in general is no help in assessing the
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unique type of prejudice the plaintiffs say they suffered here.6 Instead our
prejudice analysis should ask: What did the District Court’s summary judgment
decision actually hold? As I set out above, it is clear to me that the District Court
adjudicated liability in this case.7 The District Court found the defendants liable
for the Loitering and Curfew Rules, so its decision to submit that already-decided
issue to the jury prejudiced the plaintiffs. This is at least in part because the court
told the plaintiffs they did not need to present evidence on that issue.
And in any event, City of Miami’s proximate-cause requirement cannot be
the basis of our harmless-error analysis here because City of Miami’s holding
applies only to claims under § 3604(b). These plaintiffs challenged the Loitering
and Curfew Rules under both § 3604(b) and § 3604(c)—and the District Court
granted the plaintiffs summary judgment on their § 3604(c) claim.
In contrast to § 3604(b), this Court has never held that proximate causation
is an element of a § 3604(c) claim. A defendant is liable under § 3604(c) if the
defendant’s statement “suggests to an ordinary reader that a particular [protected
class] is preferred or dispreferred for the housing in question.” Ragin v. N.Y.
Times Co., 923 F.2d 995, 999 (2d Cir. 1991); accord Jancik v. Dep’t of Hous. &
Urban Dev., 44 F.3d 553, 556 (7th Cir. 1995); Hous. Opportunities Made Equal,
6
The Majority acknowledges this. See Maj. Op. at 46 n.10 (explaining that “[w]e need
not decide” whether “causation is part of the . . . liability determination”).
7
Whether the District Court’s summary judgment order failed to follow City of Miami is
not before us. The defendants chose not to appeal that order.
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Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 646 (6th Cir. 1991); United States
v. Hunter, 459 F.2d 205, 215 (4th Cir. 1972). 8 This is an objective, strict-liability
“ordinary reader” standard which requires neither proof of intent nor proof of
enforcement. See Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 907 (2d
Cir. 1993) (holding that the “lack of discriminatory intent and the absence of any
discriminatory effect” do not preclude a “determin[ation] [of] liability” under
§ 3604(c)); N.Y. Times, 923 F.2d at 999 (“[L]iability will follow [] when an
ordinary reader would understand the ad as suggesting a [] preference.”); Iniestra
v. Cliff Warren Invs., Inc., 886 F. Supp. 2d 1161, 1169 (C.D. Cal. 2012)
(observing that “[e]nforcement is also not a necessary element” of a § 3604(c)
claim). In its summary judgment order, the District Court applied the “ordinary
reader” standard and found that “[t]he content of the [Loitering and Curfew] rules
is such that an ordinary reader would clearly conclude that the rules discriminate
against children,” in violation of § 3604(c). Thus, even accepting the Majority’s
statement that the plaintiffs failed to prove proximate causation, this would not
make the court’s error harmless, because § 3604(c) does not require plaintiffs to
prove proximate cause in the first place.9 The court’s decision to give the question
8
Although our circuit has not yet interpreted § 3604(c), the circuits that have are
unanimous in holding that the “ordinary reader” test is the proper standard.
9
The Majority says that this Court’s unpublished decision in Fair Hous. Ctr. of the
Greater Palm Beaches, Inc. v. The Shutters Condo. Ass’n., Inc., 389 F. App’x 952 (11th Cir.
2010), shows that our circuit has “require[d] [] a causal connection in a § 3604(c) case.” Maj.
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of § 3604(c) liability to the jury after the court had already decided it certainly
prejudiced these plaintiffs.
The Majority emphasizes that the plaintiffs’ trial evidence “focused on”
causation of injury as if this focus removes any possibility that plaintiffs were
prejudiced by the District Court’s rulings on the jury instructions and verdict form.
See Maj. Op. at 8, 11, 44–45. The Majority misunderstands. It is precisely
because the plaintiffs focused their presentation of evidence on causation and
injury that they were prejudiced. The plaintiffs set out to prove causation and
injury rather than the threshold issue of whether the Loitering and Curfew rules
were unlawful.10 And they did this because they rightly thought causation and
injury were the only issues remaining for the jury to decide. The plaintiffs were
prejudiced because the District Court placed the issue of liability before the jury
when plaintiffs had not focused on evidence to prove liability. The fact that the
plaintiffs were allowed to present evidence on one element of their claim
Op. at 50. Of course a plaintiff must prove that the § 3604(c) violation caused an injury in order
to recover compensatory damages. But that does not mean that proving causation of damages is
an element of liability. See Ragin, 6 F.3d at 905–908 (analyzing separately the issues of
“liability” and “compensatory damages” under § 3604(c), and considering “the issue of
causation” only for the “compensatory damages” question of whether “the district court’s
damages award should be set aside”). In Shutters, the plaintiff “challenge[d] the [jury] decision
that it was not injured by the publication of [the discriminatory statements],” 389 F. App’x at
955, so this Court addressed the evidence pertaining to injury. We never addressed whether
proof of proximate cause is an element of § 3604(c) liability.
10
Plaintiffs’ counsel explained at oral argument that, had he known the jury would be
asked to decide the issue of liability, he would have elicited “completely different” testimony
from Marsh Harbour Board President Patricia Makarowa on cross-examination and might have
called Ms. Makarowa as a witness in plaintiffs’ case-in-chief.
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(assuming that proximate cause is a required element) cannot render harmless an
error that thwarted their ability to present evidence on another.
Finally, the Majority writes as though we can tell from the record that the
jury’s verdict in favor of the defendants was based on their finding against the
plaintiffs on the specific issue of causation. If that were true—say, because the
verdict form had a special interrogatory for each element of each claim—then I
might agree. But we don’t have that. The Majority is simply guessing when it
suggests the jury ruled against the plaintiffs because of a failure of proof on the
issue of causation. 11 And our law does not allow us to conclude that an error is
harmless when this sort of uncertainty exists. If “there is uncertainty as to whether
the jury was actually misled, the [court’s] erroneous instruction [or verdict form]
cannot be ruled harmless.”12 Busby, 931 F.2d at 777 (quotation omitted).
For all of these reasons, I dissent from the Majority’s decision to deny the
plaintiffs a new trial.
11
To support its claim that the jury found the plaintiffs’ evidence of causation
insufficient, the Majority sets up a false requirement. It says that “to prove proximate cause, the
Plaintiffs had to show the Rules were enforced against only families with children.” Maj. Op. at
44 (emphasis added). It then goes on to discuss the trial evidence that showed the rules were not
always enforced exclusively against children or families with children. See id. at 45.
If the defendants’ rules were facially neutral then I would agree that the plaintiffs would
need to prove that the rules were enforced in a discriminatory manner. But the District Court’s
summary judgment decision found that the Loitering and Curfew rules were discriminatory on
their face. No one disputes that. Therefore, the only fact issue with respect to causation of
injury is whether these facially unlawful rules caused a plaintiff harm—not whether they harmed
exclusively the plaintiffs’ class.
12
The same standard of review that applies to jury instructions also applies to special-
interrogatory verdict forms. Eskra, 125 F.3d at 1415.
73