961 F.2d 776 (8th Cir. 1992), 90-2826, White v. Pence

Docket Nº:90-2826, 90-2919.
Citation:961 F.2d 776
Party Name:Melvin WHITE, Appellant, v. B. Jeffery PENCE; Natalee Schay, Appellees. UNITED STATES of America, Appellant, v. B. Jeffery PENCE; Natalee Schay, Appellees.
Case Date:April 13, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 776

961 F.2d 776 (8th Cir. 1992)

Melvin WHITE, Appellant,


B. Jeffery PENCE; Natalee Schay, Appellees.

UNITED STATES of America, Appellant,


B. Jeffery PENCE; Natalee Schay, Appellees.

Nos. 90-2826, 90-2919.

United States Court of Appeals, Eighth Circuit

April 13, 1992

Submitted Nov. 14, 1991.

Page 777

P.A. Hollingsworth, Little Rock, Ark., argued, for appellant White; Louise A. Lerner, Washington, D.C., argued, for appellant U.S. (John R. Dunne and David K. Flynn, Washington, D.C., on brief), for appellants.

James W. Moore, Little Rock, Ark., argued (William H. Sutton, on brief), for appellees.

Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and HUNTER, [*] District Judge.

JOHN R. GIBSON, Circuit Judge.

Melvin White and the United States appeal from a judgment entered on a jury verdict in favor of defendants Jeffery Pence and Natalee Schay in this Fair Housing Act case. The district court denied White's and the government's motions which requested a new trial on the ground that the verdict was against the weight of the evidence. White, an African American, had alleged that Pence and Schay refused to rent him a house because of his race. The United States later sued Pence and Schay under the Fair Housing Act, 42 U.S.C. § 3612(o ) (1988), seeking declaratory and injunctive relief and damages on behalf of White. The cases were consolidated for trial. On appeal, White and the United States argue that the district court erred as a matter of law by basing its denial of their motions for new trial on an incorrect legal standard. We reverse and remand to the district court for further consideration under the proper standard governing motions for a new trial.

White saw an advertisement in the Arkansas Gazette, and called Schay, Pence's rental agent, to inquire about a house for rent in Little Rock, Arkansas. After agreeing to meet at the house, White arrived to look at it, and Schay approached the car and told him that the house had already been rented. White persisted in looking at the house, found it desirable, and was told that Pence had an apartment available for rent in a community 20 miles away. The next day, White asked two coworkers to call the number listed in the ad. They each did, and learned that the house was still available. White then filed a formal complaint of discrimination. Thereafter, he and a friend both placed calls to the agent and learned that the house was still available for rent. There was no dispute that following these events of September 29 and 30, 1988, the house remained available for rent until November 3, 1988.

At trial, Schay testified that she had talked with a prospective renter immediately before White arrived, told that person to go to Pence's office the following morning to sign the lease, but that the person had not done so. Frank Daley testified that he was this person, that he had looked at the property because he and his wife were breaking up, that they later reconciled and he no longer needed the property, and he did not pursue it further.

White filed this suit. After an investigation by the representatives of the Department of Housing and Urban Development, the United States also brought suit seeking relief on behalf of White, and the cases were consolidated for trial. The case was tried, and the jury deliberated about 30 minutes before returning a verdict in favor of Schay and Pence. White and the United States then filed motions for a new trial on the ground that the verdict was against the weight of the evidence and resulted in a miscarriage of justice.

The district court denied the motions, but it did so while confessing that it "simply d[id] not know with any certainty what standard is to be applied by trial courts in this circuit." United States v. Schay, 746 F.Supp. 877, 880 (E.D.Ark.1990). The court stated that its confusion was "occasioned by changing and shifting language in various opinions" of this court. Id. The district court first pointed to cases stating that when ruling on a motion for a new trial on the ground that the verdict is

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against the weight of the evidence, the trial court " 'may conduct its own evaluation of the evidence. It may weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict.' " Id. (quoting Brown v. Syntex Lab., Inc., 755 F.2d 668, 673 (8th Cir.1985) (internal citation omitted)). See also Slatton v. Martin K. Eby Constr. Co., 506 F.2d 505, 508 n. 4 (8th Cir.1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975) (same); Bates v. Hensley, 414 F.2d 1006, 1011 (8th Cir.1969) (same).

The district court observed that the standard prescribed in Brown is consonant with the law in most jurisdictions. 746 F.Supp. at 880. It concluded, however, that Brown did not state the proper test to be applied in this circuit. Id.

The district court believed that the "problem" first arose in Fireman's Fund Insurance Co. v. Aalco Wrecking Co., 466 F.2d 179 (8th Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973), where the court stated that a motion for new trial may not be granted unless the verdict is against the "clear weight," "overwhelming weight," or "great weight" of the evidence, and that the true standard is simply one as to whether a miscarriage of justice had occurred. Id. at 187. The district court believed that the weight standards "change[d] the test." 746 F.Supp. at 881. The district court also pointed to another statement in Fireman's Fund which prefaced our reversal of the trial court's grant of a new trial: " 'The evidence is such that reasonable men may differ as to the result, therefore, the determination should properly be left for the jury.' " Id. (quoting Fireman's Fund, 466 F.2d at 187).

Based on Fireman's Fund and cases following it, particularly Blake v. J.C. Penney Co., 894 F.2d 274 (8th Cir.1990), the district court reasoned that "there [could] be no interpretation of the language ... in Blake other than that the standard for ruling on motions for judgments n.o.v. and for a new trial are identical.... In other words, it appears that the Court of Appeals told trial courts in Blake that if the evidence is not deficient enough to grant a motion for a judgment n.o.v. it is also not deficient enough to grant a new trial." 1 746...

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