LeSavage v. White, s. 82-3177
| Decision Date | 20 March 1985 |
| Docket Number | 83-3172,Nos. 82-3177,s. 82-3177 |
| Citation | 755 F.2d 814 |
| Parties | Audrey LeSAVAGE and Bernard LeSAVAGE, Plaintiffs-Appellees, v. Gerald WHITE and Phyllis White, James E. Carpenter, Pasco County, Defendants- Appellants. Bernard LeSAVAGE, Plaintiff-Appellant, v. James CARPENTER, Gerald White and Phyllis White, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Julius F. Parker, Jr., Tallahassee, Fla., for Carpenter.
Eloise Taylor, Asst. County Atty. New Port Richey, Fla., for Pasco County.
Herman B. Blumenthal, III, Largo, Fla., Robert W. Morrison, Tampa, Fla., for LeSavage.
Appeals from the United States District Court for the Middle District of Florida.
Before GODBOLD, Chief Judge, JOHNSON and CLARK, Circuit Judges.
This appeal is from judgments in favor of plaintiffs against a deputy sheriff and two neighbors of plaintiffs, a judgment against the county for attorney's fees on 42 U.S.C. Sec. 1983 claims, and a malicious prosecution claim and a common law battery claim. We reverse the Sec. 1983 judgments and the malicious prosecution judgment and affirm the common law battery judgment.
Gerald and Phyllis White and Bernard and Audrey LeSavage lived one home apart in a residential subdivision in Pasco County, Florida, and carried on a mostly petty feud beginning in 1979 and extending to trial of this case. The county sheriff's office was called to the scene repeatedly over a period of two to three years to attempt to deal with incidents, some trivial, others serious, between the two sets of neighbors. Against this background the neighborhood fracas occurred that brought on this suit by the LeSavages against the Whites, the county sheriff, and four deputies. The suit ended in substantial judgments against Deputy Carpenter, a substantial judgment against the Whites, a judgment against the county for attorney's fees, and an argument over execution of the judgment against the Whites.
We have sorted through a record of almost unbelievable complexity and confusion to determine what was claimed, what was tried, and what was submitted to the jury. We reverse all the judgments except a judgment of $1,500 in favor of Audrey LeSavage against Deputy Carpenter for common law battery.
In August 1979 Pasco County Sheriffs Blevins and Tucker responded to a complaint and found Audrey LeSavage riding a tricycle around and around making faces at people and acting upset and very hostile towards the Whites. They took her into custody under the Florida Mental Health Law, known as the Baker Act. 1 She was evaluated by a person designated by the County Mental Health Department and transferred to a hospital where she was kept for five days and then released. She was initially very hostile in the hospital and refused to answer any of the doctor's questions. The doctor's reports stated that she was not suffering from any psychiatric illness.
During the succeeding year the sheriff's office responded to an estimated 20 complaints arising from the friction between the LeSavages and the Whites (and at times involving other neighbors as well).
The incident that triggered the filing of this suit took place in October 1980. The Whites complained to the sheriff's office that Bernard LeSavage had struck both of them with a lawn sprinkler. Bernard complained that Gerald White came onto his property with a knife, shouting epithets at him, and that he raised the lawn sprinkler to protect himself. Audrey LeSavage called the sheriff's office. Deputy Vaughn investigated and filed two reports, one in which Gerald is the complainant, alleging Bernard hit him with the sprinkler, and another in which Bernard is the complainant, alleging Gerald threatened him with a knife. Both reports describe the subject matter as "aggravated assault: referral." In both reports Vaughn stated that he had spoken with all involved parties and had set up an appointment with a state's attorney to take testimony and clarify the facts.
Deputy Carpenter had been assigned by the sheriff's office to handle all complaints from the LeSavages and the Whites. Gerald White testified that, as best he could remember, Carpenter had told both White and LeSavage that "the next person that committed a crime he could prove, that person would be arrested." Tr. vol. 5 at 57. At trial White was questioned about an earlier deposition in which he had stated that Carpenter said "I guarantee you that the first one of you people to get out of line is going to jail." Tr. vol. 5 at 57. Bernard testified that Carpenter had made a statement to the effect that the next person that stepped out of line in Viva Villas (the residential area) would be arrested if he could prove it. Tr. vol. 4 at 189. Carpenter testified that he had said that if there were "any violations of the law, enforcement action would be taken." Tr. vol. 4 at 245.
According to Carpenter, when he arrived at work on October 15, the day after the incident, he found only Vaughn's report based upon the complaint by White that Bernard had hit him with the sprinkler. Carpenter spoke with White and with two witnesses who had observed the lawn sprinkler incident and whose statements were consistent with White's. Carpenter then spoke with two assistant state's attorneys who decided to press charges against Bernard for battery. Carpenter signed an affidavit prepared by the state's attorneys office and submitted it to a judge who issued a warrant authorizing Bernard's arrest for statutory battery.
Carpenter, accompanied by another deputy, went to the LeSavages' home to execute the warrant. While the deputies arrested Bernard, Audrey tried to grab away from Carpenter the lawn sprinkler, which he had picked up in the garage. He told her that he was taking the lawn sprinkler as evidence. Audrey then called her neighbors, the Marcottes. Mr. Marcotte arrived at the LeSavages' within a few minutes; he saw Bernard in the front yard, handcuffed and in the custody of a deputy, and heard Audrey crying.
Mrs. Marcotte arrived a few minutes later. She entered the garage area and found Audrey sitting in a chair crying, with Carpenter standing nearby. Mrs. Marcotte later testified that Audrey was upset but lucid and in control of herself. Mrs. Marcotte and Audrey went inside for ten minutes. Audrey dressed and gave Mrs. Marcotte instructions concerning the LeSavages' dog and house.
At some point, as Carpenter was exiting the house, Audrey slammed the door. Carpenter testified that Audrey slammed the door on his arm and shoulder, injuring him, which Audrey denied. Carpenter decided to take Audrey and commit her for observation under the Baker Act. The deputies took the LeSavages to the sheriff's compound. Mr. Marcotte posted bond for Bernard and he was released. The charges against Bernard were subsequently dropped on speedy trial grounds.
A social worker employed by the county examined Audrey, then she was taken to a hospital for injuries she claims to have suffered when Carpenter had grabbed her by the arm to take her into custody. After leaving the hospital, pursuant to the Baker Act, she was taken to the same hospital in which she had been under observation a year earlier. A few hours after Audrey's arrival she was seen by the same doctor who had seen her in 1979. He kept Audrey overnight and released her the following afternoon. He explained that he did not release her sooner because of the paperwork involved.
The LeSavages sued the Whites, the sheriff and four deputies in three counts alleged to arise under 42 U.S.C. Sec. 1983. Either before or at trial counts were restated, renumbered, and some dropped from the case. A directed verdict was entered for all defendants charged with participation in taking Audrey into custody in 1979. The court also directed a verdict on a charge that Carpenter had conspired with the Whites in the October 1980 arrest of Bernard and commitment of Audrey.
The case was tried before a jury. One of the claims, a malicious prosecution claim against the Whites, was tried over their objection because they contended it had been removed from the case by agreements reached in pretrial orders. The sheriff and three deputies were dropped out of the case by dismissal before trial or on directed verdict.
The jury returned verdicts producing judgments as follows
-- On Count 1, for Bernard LeSavage, against Carpenter, for "false imprisonment, arrest[ed] without probable cause," $7,000.
--On Count 2, for the LeSavages, against Carpenter, for "taking Audrey into custody under the Baker Act and in violation of due process," $75,000.
--Count 3, for the LeSavages, against Carpenter, for battery by use of excess force when taking Audrey into custody, $1,500. 2
--Count 4, for the LeSavages, against the Whites, for malicious prosecution, $25,000.
After trial the court entered judgment in favor of the LeSavages against Pasco County, not a party to the suit, for attorney's fees on the Sec. 1983 claims, under 42 U.S.C. Sec. 1988.
The LeSavages sought a writ of execution against the Whites and began proceedings to execute their $25,000 judgment. Phyllis claimed a homestead exemption. The court found that she was entitled to it.
Carpenter and the Whites appealed. The county was granted leave to intervene for purposes of appeal and questions the assessment of attorney's fees against it. The LeSavages sought to appeal from the district court's failure to grant them an evidentiary hearing or to allow additional discovery on the homestead issue.
The judgments against Carpenter based on false arrest of Bernard and taking Audrey into custody under the Baker Act must be reversed and judgment entered for Carpenter. We affirm the judgment against Carpenter on the claim of common law battery by Audrey. We reverse the judgment against the Whites for malicious prosecution and direct entry of judgment for the Whites.
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