Ondrisek v. Hoffman

• Decision Date: 13 November 2012
• Docket Number: No. 11–3003.,11–3003.
• Citation: 698 F.3d 1020
• Parties: Spencer ONDRISEK; Seth Calagna, Plaintiffs–Appellees v. Bernie Lazar HOFFMAN, also known as Tony Alamo, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

698 F.3d 1020

Spencer ONDRISEK; Seth Calagna, Plaintiffs–Appellees

v.Bernie Lazar HOFFMAN, also known as Tony Alamo, Defendant–Appellant.

No. 11–3003.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2012.

Filed: Oct. 1, 2012.

Rehearing and Rehearing En Banc Denied Nov. 13, 2012.

John Wesley Hall, Little Rock, AR, for appellant.

John Robert Mercy, William David Carter, Texarkana, TX, for appellee.

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Bernie Lazar Hoffman, better known as Tony Alamo, appeals a jury verdict finding him liable for battery, outrage, and conspiracy. He also appeals the district court's denial of his motion for remittitur. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part and reverses in part. ¹

I.

Alamo was the leader of a religious group, Tony Alamo Christian Ministries (TACM). He controlled members' finances and prohibited them from traveling or speaking to outsiders unless it was to witness. Children were not allowed to attend public schools, watch television, or listen to the radio. They were told not to trust anyone, especially government officials or police. Alamo regularly recorded messages telling followers that if they left the group, they would become homosexuals and go to hell. Followers were afraid to question Alamo; those who did were often beaten.

Spencer Ondrisek and Seth Calagna were raised in TACM. They were forced to work without pay starting at the age of 8. Alamo began threatening to beat Ondrisek when he was 11. Alamo told him that if he disobeyed, he would be enlisted in the military and “shot and killed.” When he was 12, Alamo had an “enforcer” severely beat him because he made a small tunnel while hauling dirt for the church. As Ondrisek received discipline of 15 to 20 blows to his face, Alamo made his father watch. Ondrisek then received 20 to 30 strikes from a paddle that was three feet long, an inch-and-a-half thick, and three or four inches wide. He was unable to sit for several days and not allowed to attend services because the swelling on his face was too visible. Two years later Alamo had Ondrisek beaten again for horseplay. He sustained 15 to 20 hits to his mouth, beginning to bleed after the second blow. He also received 30 to 40 paddles (maybe more), causing severe bruising that did not fully heal for several weeks. He has permanent scarring from the beating. At 15, Ondrisek's schooling stopped, and he began working on the church's property 70 hours a week. He was forced to attend services and listen to Alamo's recordings daily. As punishment for falling asleep as a night watchman, Alamo required him to fast two days, giving him only water. At 16 or 17, Ondrisek was beaten for a third time after being falsely accused of bullying. He was slapped 20 or more times in the face, and paddled 40 times. Ondrisek blacked out, but no one took him to a hospital. His hand was severely injured and still causes him pain.

Calagna's youth at TACM was similar to Ondrisek's. When he was 14, Calagna's parents woke him at 4 a.m. to have him beaten. He was hit so hard he vomited. His face was unrecognizable afterwards; his injuries took weeks to heal. Less than a month later, he witnessed his father get beaten, causing him emotional distress. He was beaten again at 17 for talking about “Harry Potter.” He was struck until the paddle broke and then hit again with a larger board. In addition to physical abuse, both boys experienced verbal abuse. They both contemplated suicide, “unable to imagine that death would be worse.” At 18, Ondrisek and Calagna escaped TACM separately. They still have trouble sleeping, experiencing nightmares and flashbacks. Alamo is currently serving a 175–year sentence for 10 counts of transporting minors across state lines for illicit sex. United States v. Hoffman, 626 F.3d 993 (8th Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 3004, 180 L.Ed.2d 823 (2011).

Ondrisek and Calagna sued Alamo for battery, outrage, and conspiracy. At trial, Alamo requested a jury instruction that reasonable corporal punishment was a defense to battery, but the court refused it. The jury awarded Ondrisek and Calagna each $3 million in actual damages and $30 million in punitive damages. The district court denied Alamo's motion to remit the actual and punitive damage awards. Alamo asserts on appeal that (1) he is not liable because he was exercising his First Amendment rights; (2) the district court erred in refusing his jury instruction on battery; (3) the evidence was insufficient to support a claim for outrage; and (4) the compensatory and punitive damages were excessive.

II.

Alamo believes he should be free from liability because he is able to exercise his religion freely. The First Amendment allows freedom of religious belief, but not injuries to the “equal rights of others.” SeeSharp v. Sigler, 408 F.2d 966, 970 (8th Cir.1969) (“While freedom to believe is absolute, the exercise of religion is not. The exercise is not, for example, to be ‘injurious to the equal rights of others.’ ”), quoting Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 33 L.Ed. 637 (1890). If a religious practice physically injures others, the state has the power to prevent or punish the acts. Feiner v. New York, 340 U.S. 315, 320, 71 S.Ct. 303, 95 L.Ed. 295 (1951). Alamo's contention that the trial should not have proceeded because it involvedonly ecclesiastical questions is without merit.

III.

“This court reviews the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the [nonmovant], with all reasonable inferences and credibility determinations made in support of the jury's verdict.” United States v. Kelly, 436 F.3d 992, 996 (8th Cir.2006). To preserve an insufficiency argument, a party must move for a judgment as a matter of law before submission to the jury, or after the verdict and entry of judgment in accordance with Rule 50 of the Federal Rules of Civil Procedure. Linden v. CNH Am., LLC, 673 F.3d 829, 832 (8th Cir.2012), citing Unitherm Food Sys., Inc. v. Swift–Eckrich, Inc., 546 U.S. 394, 396, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006). “ ‘[I]n the absence of such a motion’ an ‘appellate court [is] without power to direct the District Court to enter judgment contrary to the one it had permitted to stand.’ ” Unitherm, 546 U.S. at 400–01, 126 S.Ct. 980 (second alteration in Unitherm), quoting Cone v. West Va. Pulp & Paper Co., 330 U.S. 212, 218, 67 S.Ct. 752, 91 L.Ed. 849 (1947). See generally Johnson v. New York, New Haven & Hartford R.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952) (holding that in the absence of a motion for judgment notwithstanding verdict, an appellate court cannot enter such judgment); Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177 (1948) (holding that an appellate court cannot order a final judgment for the loser of a jury verdict who failed to move under Rule 50(b)). The same applies to the appellate court's ability to order a new trial. Unitherm, 546 U.S. at 402, 126 S.Ct. 980. “No procedural principle is more familiar to [the] Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

Alamo complains that his actions do not rise to the level of outrageous conduct required by Arkansas Law. Alamo never moved for a judgment as a matter of law before the case's submission to the jury or after the jury's verdict. This court has no power to review his claim.

IV.

This court reviews the district court's denial of a requested jury instruction for abuse of discretion. St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 594 (8th Cir.2001). Appellate review is limited to whether the instructions, viewed on the whole, fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury. Id. In a diversity case, state law applies to the substance of the instructions. Kudabeck v. Kroger Co., 338 F.3d 856, 863 (8th Cir.2003). “An error in instructing the jury in a civil case does not require reversal if it is more probably than not harmless.” Ross v. Jones, 888 F.2d 548, 550 (8th Cir.1989). This court should reverse only if the district court made an error that affects the substantial rights of the parties. McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737, 744–45 (8th Cir.2010), quoting Brown v. Sandals Resorts Int'l, 284 F.3d 949, 953 (8th Cir.2002).

Alamo believes that beating Ondrisek and Calagna was justified as punishment under Arkansas law. SeeArk.Code Ann. § 5–2–605; Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316, 322 (2002), citingArk.Code Ann. § 12–12–503(2)(C)(i) (Supp.2001) (repealed 2009); Arkansas Dep't of Human Servs. v. Holman, 96 Ark. App. 243, 240 S.W.3d 618, 621 (2006) (evidence of bruising alone is not dispositive to prove abuse). He proffered the following jury instruction:

It is a complete defense to battery in that reasonable corporal punishment was imposed on plaintiffs by a school administrator, teacher, parent, or person entrusted or otherwise responsible for a child's care and discipline because the plaintiffs were engaging in any conduct that was disruptive, harassing of others, constituted bullying, violence, or other unacceptable conduct.

Corporal punishment shall be reasonable, shall not be excessive, and shall not be administered with malice. The fact there was bruising does not make corporal punishment unreasonable.

If you find that corporal punishment was reasonably applied and was not excessive, then your verdict should be for Tony Alamo and against Spencer Ondrisek and Seth Calagna.

Alamo contends that the district court erred in refusing this instruction. Any error was harmless. Because Alamo's instruction applied only to...