Malloy v. Monahan, s. 94-1376

• Decision Date: 05 January 1996
• Docket Number: Nos. 94-1376,94-1433 and 94-1458,s. 94-1376
• Parties: Leon MALLOY, Plaintiff-Appellee, v. Officer William MONAHAN, individually and in his official capacity as a police officer for the City and County of Denver, Defendant-Appellant, and Denver, City and County of, Officer Mark F. Haney, individually and in his official capacity as a police officer for the City and County of Denver, Defendants. Leon MALLOY, Plaintiff-Cross-Appellant, v. William MONAHAN, individually and in his official capacity as a police officer for the City and County of Denver, Defendant-Cross-Appellee. Leon MALLOY, Plaintiff-Appellee, v. DENVER, CITY AND COUNTY OF, William Monahan, individually and in his official capacity as a police officer for the City and County of Denver, Defendants-Appellants, and Officer Mark F. Haney, individually and in his official capacity as a police officer for the City and County of Denver, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1012

73 F.3d 1012

Leon MALLOY, Plaintiff-Appellee, v. Officer William MONAHAN, individually and in his official

capacity as a police officer for the City and

County of Denver, Defendant-Appellant,

and

Denver, City and County of, Officer Mark F. Haney,

individually and in his official capacity as a

police officer for the City and County

of Denver, Defendants.

Leon MALLOY, Plaintiff-Cross-Appellant, v. William MONAHAN, individually and in his official capacity

as a police officer for the City and County of

Denver, Defendant-Cross-Appellee.

Leon MALLOY, Plaintiff-Appellee, v. DENVER, CITY AND COUNTY OF, William Monahan, individually

and in his official capacity as a police officer

for the City and County of Denver,

Defendants-Appellants,

and

Officer Mark F. Haney, individually and in his official

capacity as a police officer for the City and

County of Denver, Defendant.

Nos. 94-1376, 94-1433 and 94-1458.

United States Court of Appeals, Tenth Circuit.

Jan. 5, 1996.

Joseph J. Mellon, the Mellon Law Firm, Denver, Colorado (Paula M. Ison, with him on the briefs), for Appellee/Cross-Appellant.

Robert M. Liechty, Halaby, Cross, Liechty, Schluter & Buck, Denver, Colorado (Theodore S. Halaby, with him on the briefs), for Appellant/Cross-Appellee.

Before TACHA and McWILLIAMS, Circuit Judges, and ELLISON, ^* District Judge.

TACHA, Circuit Judge.

Leon Malloy brought this action against Denver Police Officer William Monahan under 42 U.S.C. Sec. 1983 for the deprivation of his constitutional rights. Malloy won a jury verdict, and Officer Monahan now appeals that verdict and the district court's subsequent award of attorney's fees. Officer Monahan contends that the district court erred in (1) admitting an exhibit showing Malloy's lost future profits, (2) denying a motion for a new trial or remittitur based on the excessiveness of the verdict, and (3) improperly calculating the award of attorney's fees. Malloy cross-appeals the district court's refusal to award prejudgment interest. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

Background

On November 14, 1990, Leon Malloy had an argument with his estranged wife at one of his properties on Milwaukee Street in Denver. Malloy left the Milwaukee Street residence and went to his home on York Street. Malloy's wife followed him to the York Street residence, and he asked her to leave.

Malloy's wife then contacted two police officers, William Monahan and Mark Haney, and told them that she had been fighting with Malloy and that she and her children needed to get into the York Street house. A few minutes later, the officers met her at the house. Officer Monahan asked her for the keys to the house and then he gave them to Officer Haney.

When Officer Haney attempted to open the door, Malloy slammed it shut. At this point, Malloy could not see the officers; he yelled to his wife that she was not coming in and that if she did not leave he would call the police. As Malloy leaned to look out a window, Officer Haney burst through the door and fell on top of him. Officer Monahan followed Haney into the house. When Malloy attempted to get up, Haney put him in a carotid hold. Monahan then sprayed Malloy with mace and began beating him with his baton. Monahan told Malloy, "We're going to teach you a lesson." Haney pulled Malloy toward the kitchen while Monahan continued beating him with the baton. Throughout the ordeal, Malloy repeatedly offered his hands to be handcuffed, but Officer Monahan responded by hitting Malloy's hands with the baton.

Once in the kitchen, Malloy twisted out of the hold and faced Haney. Haney then turned Malloy around and pushed him against the sink. Meanwhile, Monahan continued beating him with the baton. Malloy again offered his hands to be handcuffed, but Monahan used the baton as a lever to force Malloy's arm into an unnatural position behind his back. When the beating finally stopped, Malloy looked back and saw Officer Monahan with his hand on his gun. At that point, a third police officer entered the house and Malloy was taken into custody.

Malloy initially brought claims for the deprivation of his constitutional rights against the two officers and the City and County of Denver. Midway through the trial, Malloy dismissed the claim against Denver. With regard to Malloy's claims against the officers, the jury found for Officer Haney, but found against Officer Monahan in the amount of $151,055.58. In a subsequent proceeding, the district court granted Malloy's application for attorney's fees and costs in the amount of $76,320.25 (later raised to $81,377.22), denied his application for prejudgment interest, and denied Officer Monahan's motion for a new trial or remittitur. This appeal followed.

Exhibit Showing Lost Future Profits

Before the incident with the police, Malloy had been involved in the purchase, rehabilitation, and sale of distressed residential properties. He claimed at trial that the beating left him unable to pursue his real estate ventures and thus robbed him of anticipated profits. In support of this claim, Malloy presented Exhibit 15--his calculation of profits that he would have realized absent the incident with the police. The first portion of the exhibit listed the purchase price, rehabilitation cost, commission cost, and likely sale price for each of two houses owned by Malloy at the time of the incident. The second and third portions of the chart contained similar calculations for two sets of four additional, as yet unidentified, houses. Thus the exhibit purported to describe the profits that Malloy would have made by rehabilitating and selling two houses that he currently owned, using those profits to purchase, rehabilitate and sell four additional houses and, thereafter, purchasing, rehabilitating, and selling four more houses. Malloy anticipated total profits of $374,760.00 from these ventures.

Officer Monahan maintains that it was error for the district court to admit the exhibit both because the exhibit lacked a proper foundation and because it was unduly speculative. We review the district court's determination of the admissibility of exhibits for a clear abuse of discretion. State Office Sys., Inc. v. Olivetti Corp. of Am., 762 F.2d 843, 845 (10th Cir.1985). We first determine whether the exhibit had a proper foundation. Officer Monahan concedes that the first portion of the exhibit, detailing the purchase prices and the projected sale prices of the two houses owned by Malloy at the time of the incident, is admissible. As owner of the houses, Malloy was qualified to testify regarding their value because of his special knowledge of the properties. United States v. 10,031.98 Acres, 850 F.2d 634, 636 (10th Cir.1988). The critical question, then, is whether the remainder of the exhibit is admissible as either lay or expert opinion testimony.

Our decision in State Office Systems guides our disposition of this issue. In State Office Systems, the president of the plaintiff corporation offered his projection of future profits lost as a consequence of the defendant's breach of contract. 762 F.2d at 845-46. Given the president's knowledge of the type of business at issue and his position in the company, we ruled that he possessed sufficient expertise and personal knowledge of the company to render such an opinion. Id. at 846. Moreover, we found it significant that the defendant had ample opportunity to cross-examine the witness about the basis of his figures. Id. Thus we concluded that the trial court properly admitted the president's projections as opinion testimony under either Fed.R.Evid. 701 or Fed.R.Evid. 702. Id.

Here, Malloy offered an exhibit that projected future profits that had been lost as a consequence of the incident with the police. At the time of the incident, Malloy owned three residential properties in Denver, a house in Albuquerque, and several properties in North Carolina. He had at least fifteen years experience in the purchase, rehabilitation, and sale of residential properties. He had attended property management seminars and had read property management literature. He also possessed extensive, hands-on experience renovating residential properties. Thus, like the corporation president in State Office Systems, Malloy had sufficient expertise and personal knowledge to render an opinion as to lost future profits of his own real estate ventures. Further, Officer Monahan had the opportunity to cross-examine Malloy regarding the basis of his figures, and used that opportunity to question Malloy's experience in the real estate market, his basis for the projections, and his failure to account for the tax consequences of his ventures. Thus Exhibit 15 had a proper foundation.

We next examine whether the projections of lost future profits in Exhibit 15 were unduly speculative. "Federal standards govern the determination of damages under the federal civil rights statutes." Garrick v. City and County of Denver, 652 F.2d 969, 971 (10th Cir.1981). Accordingly, damage awards for lost future profits may not be based upon mere speculation. Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 541 (10th Cir.1987); K-B Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1160 (10th Cir.1985). However, awards for lost profits are acceptable so long as the lost profits can be estimated on a reasonable basis. K-B Trucking, 763 F.2d at 1160; Webb v. Utah Tour Brokers Ass'n, 568 F.2d 670, 677 (10th Cir.1977). While estimates of lost future profits may necessarily contain some speculative elements, United Steelworkers v. CCI Corp., 395 F.2d 529, 533 (10th Cir.1968), cert. denied, 393 U.S. 1019, 89 S.Ct. 627, 21 L.Ed.2d 564 (1969); United States v. Griffith, Gornall & Carman, Inc., 210 F.2d 11, 13 (10th Cir.1954), the factfinder must have before it "such facts and circumstances to enable it to make an estimate of damage based upon judgment, not guesswork," Griffith, Gornall & Carman, 210 F.2d at 13.

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