881 F.2d 1336 (5th Cir. 1989), 88-2770, Worsham v. City of Pasadena

Docket Nº:88-2770.
Citation:881 F.2d 1336
Party Name:Ben WORSHAM, Plaintiff-Appellant, v. The CITY OF PASADENA, et al., Defendants-Appellees.
Case Date:August 31, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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881 F.2d 1336 (5th Cir. 1989)

Ben WORSHAM, Plaintiff-Appellant,


The CITY OF PASADENA, et al., Defendants-Appellees.

No. 88-2770.

United States Court of Appeals, Fifth Circuit

August 31, 1989

David W. Showalter, Pamela Prince Stines, Bellaire, Tex., for plaintiff-appellant.

Carnegie H. Mims, Jr., Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, JOHNSON and DUHE, Circuit Judges.

JOHNSON, Circuit Judge:

The instant case followed a tortuous procedural path before finally coming to rest before this Court. Briefly, appellant Ben Worsham filed an action under 42 U.S.C. Sec. 1983. Among the defendants were the City of Pasadena and several city officials in their individual and official capacities. The jury returned a verdict for Worsham against some of the defendants. After originally denying defendants' motion for a new trial, the district court granted a new trial on the issues of liability and damages. All of the individual defendants were dismissed in their individual capacities; consequently, the new trial served to determine only the liability of the City.

The case was subsequently reassigned to another trial judge who granted the defendants' motion for dismissal pursuant to Rule 12(b)(6). Worsham filed a timely appeal to this Court alleging first, that the district court abused its discretion in granting a new trial. Second, Worsham argues

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that even if a new trial was proper, the dismissal was not; consequently, he argues that the case should be remanded. We affirm the district court in all respects.


Worsham's employment with the City of Pasadena, Texas (Pasadena), as a construction-site inspector, was interrupted when a letter from Mayor Jim Clark, dated February 2, 1981, imposed on Worsham an indefinite term of suspension. Although the letter cited insubordination as the reason for the suspension, Worsham maintains that the Mayor's action was the result of an ongoing dispute with Worsham's superiors concerning their approval of a certain construction project which he had opposed. Worsham appealed his suspension to the City Council, which reinstated him at a meeting held on March 3, 1981.

On March 31, 1981, Worsham filed an action pursuant to 42 U.S.C. Sec. 1983, claiming that the suspension of his employment violated his constitutional rights. 1 By the time the case was tried, Worsham had named as defendants Pasadena, several city officials in their individual and official capacities, and a private real estate development corporation along with its principal owner.

A jury returned a verdict for Worsham against Mayor Clark and Public Works Director W.K. Thomasset, Worsham's supervisor. The court entered judgment against Clark and Thomasset in their individual and official capacities. The City was held liable for the actual damages awarded Worsham. Numerous post-trial motions were filed, including a motion for new trial, which the court denied. No liability was found against any of the other defendants.

After reconsidering his denial of the new trial motion, Judge Bue, who had presided over the trial of the case, granted a new trial in December of 1983, on the issues of liability and damages. Following the grant of new trial, all of the individual defendants were dismissed in their individual capacities. Consequently, the new trial served exclusively to determine the liability of Pasadena, both directly and as a consequence of the actions of city officials acting in their official capacities.

After Judge Bue's retirement, the case was reassigned to Judge Hoyt. On July 12, 1988, Judge Hoyt granted defendants' Fed.R.Civ.P. 12(b)(6) motion to dismiss. This appeal followed.


On appeal, Worsham attacks the propriety of the grant of new trial as well as the 12(b)(6) dismissal. First, he contends that Judge Bue abused his discretion in granting a new trial; as an alternative to this assertion, Worsham argues that any justifiable alteration should have been effectuated in a more narrowly tailored manner by either an order of remittitur or, at most, a new trial on the amount of damages only. Finally, Worsham submits that even if the new trial order was appropriate, Judge Hoyt's 12(b)(6) dismissal of his case was not, and that remand for a new trial is appropriate. 2

We find Worsham's arguments unpersuasive and affirm both the new trial order

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and the 12(b)(6) dismissal. Since we affirm the new trial order in toto, we do not address the question of the appropriateness of a new trial on damages alone or of remittitur as an alternative.


A. New Trial

We turn first to the grant of a new trial on the issue of damages. A grant of a new trial for excessive damages will only be reversed if we conclude that the trial court abused its discretion. Richardson v. Communications Workers of America, 530 F.2d 126, 130 (5th Cir.), cert. denied, 429 U.S. 824, 97 S.Ct. 77, 50 L.Ed.2d 86 (1976). Where the grant of a new trial is based upon the insufficiency of the evidence supporting the verdict, our inquiry focuses upon whether the verdict was against the great weight of the evidence. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.1982). If so, the trial court has not abused its discretion in ordering a new trial. In a situation where, as here, the size of the verdict, and not the evidence presented, rests as the basis for the new trial, we consider this to be "a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses." Great deference must be accorded the trial court's judgment under these circumstances, and reversal occurs rarely. Reversal is appropriate only in "situations where we are pressed to conclude that there is 'plain injustice' or a 'monstrous' or 'shocking' result." Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447, 448 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961).

In this case, Judge Bue properly identified the standard to which he was bound in granting the new trial motion. He analyzed the damage award and the evidence supporting it and concluded that the award not only was against the weight of the evidence on this point, but also shocking to the conscience. Because of the nature of the constitutional violations involved, he determined that the damages issue was inextricably linked to the liability issue. Accordingly, he felt that a complete retrial was appropriate. We find no clear abuse of discretion in this disposition of the motion.

After Judge Bue's previous adjustment to eliminate attorney's fees and costs, the total award to Worsham was $400,000, the amount he had claimed as actual damages throughout the trial. Judge Bue determined that there was simply no evidence to justify such a large award; in addition to Worsham's inability to claim any lost wages because of the brief duration of his suspension, his assertion that he somehow had lost his ability to earn a decent living in the future was completely unsubstantiated.

The only evidence of any actual damages upon which an award could have been based was Worsham's own highly speculative and unsupported testimony regarding his emotional distress and ruined reputation. After reviewing the evidence that went to the jury, Judge Bue concluded that it simply could not support a $400,000 award of actual damages. 3

We next turn to the grant of a new trial on the liability issue; the question is whether Judge Bue was justified in ordering a new trial on the issue of liability as well. In Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 283 (5th Cir.1975), we held that in "a case in which the issue of liability was strongly disputed, and where the trial court itself determined the award of damages to have been grossly excessive," it may be appropriate to require a new trial on both damages and liability. Furthermore, in Richardson, 530 F.2d at 130, we found that there was no "abuse of discretion in failing to limit the new trial to damages only," even though remittitur was arguably a more appropriately tailored remedy. We reasoned that the liability issue

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was inseparable from the damages issue, as there were multiple defendants whose liability for allegedly wrongful acts over a period of several months depended upon the application of principles of agency.

Although the facts of this case are not identical to those in Richardson, we believe that they are sufficiently analogous so that we will not disturb the trial court's discretionary determination that the two issues were too closely intertwined to justify retrial on the damages issue alone.

B. Dismissal

In reviewing the propriety of a dismissal pursuant to Rule 12(b)(6), this Court independently applies the same test employed at the trial level and asks whether it appears to a certainty that the plaintiff would not recover under any set of supporting facts which might be proved. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Judge Hoyt correctly concluded that it did so appear. Dismissal pursuant to Rule 12(b)(6) was proper.

The district court supported its conclusion that Worsham had failed to state a claim on which relief could be granted by asserting that "[p]laintiff failed to state a municipal policy that deprived him of a constitutinoal right, failed to state more than a single instance of the alleged constitutional deprivation, assuming one existed, and failed to allege specific facts to overcome defendants' official immunity." 4

Section 1983 provides for liability to be imposed upon any person who, acting under color...

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