Silver v. Cormier, s. 74--1829

• Decision Date: 30 January 1976
• Docket Number: Nos. 74--1829,C--4581,74--1830,s. 74--1829
• Citation: 529 F.2d 161
• Parties: Joe SILVER et al., Plaintiffs-Appellees and Cross-Appellants, v. Paul S. CORMIER, Defendant-Appellant and Cross-Appellee. ().
• Court: U.S. Court of Appeals — Tenth Circuit

Page 161

529 F.2d 161

Joe SILVER et al., Plaintiffs-Appellees and Cross-Appellants, v. Paul S. CORMIER, Defendant-Appellant and Cross-Appellee.

Nos. 74--1829, 74--1830 (C--4581).

United States Court of Appeals, Tenth Circuit.

Argued Aug. 21, 1975.

Decided Jan. 30, 1976.

Loring E. Harkness, Rovira, DeMuth & Eiberger, Denver, Colo. (Luis D. Rovira, Denver, Colo., on the brief), for defendant-appellant and cross-appellee.

Harold A. Feder and Matthew J. Zale, Feder & Morris, Denver, Colo., for plaintiffs-appellees and cross-appellants.

Before LEWIS, Chief Judge, and BARRETT and DOYLE, Circuit Judges.

LEWIS, Chief Judge.

This is an action lodged under 42 U.S.C. § 1983 alleging a violation of plaintiffs' civil rights by defendant and others through an unlawful restriction claimed to have been imposed upon plaintiffs' right of access to the courts. The case was tried to a jury and submitted only as to the defendant, all others being dismissed from the action by order of the trial court entered during the course of the trial. The jury returned a verdict for $5,500 against the defendant and this appeal is taken from the judgment entered. Plaintiffs' cross-appeal from an order of the court refusing a hearing on and an allowance of attorneys fees in the case.

Plaintiffs were the owners of an automotive supply business in downtown Denver, Colorado, upon their property located within the boundaries of Denver's Skyline Urban Renewal Project. Faced, by operation of law, with the necessity of extensive renovation of the property, sale to third persons, or sale to the Denver Urban Renewal Authority (D.U.R.A.), plaintiffs in August of 1971 agreed to and did sell the property to D.U.R.A. for approximately $100,000. At such time D.U.R.A. indicated a plan to demolish the building. However, a year later D.U.R.A. altered its plan and sold the property to a purchaser who agreed to restore the building and operate the premises as a restaurant and historical landmark. The purchase price was $150,000.

In addition to the $100,000 purchase price for the property, plaintiffs were, also by operation of law, entitled to an additional sum for relocation costs or, in the alternative, to a set sum for 'going out of business.' Plaintiffs elected to go out of business and were entitled to the sum of $10,000, the maximum amount set by law. The defendant was the relocation officer for D.U.R.A. and it was through plaintiffs' dealing with the defendant in such capacity that the instant case arose.

Plaintiffs were, understandably, unhappy that they had sold their property for $100,000 to D.U.R.A. when D.U.R.A. resold the property for $150,000. This dissatisfaction was repeatedly stated to defendant along with indications that plaintiffs intended to bring suit on this issue. ¹ Defendant, having had no responsibility concerning the sale aspect and desirous of completing the 'going out of business' aspect of the transaction, became increasingly annoyed with plaintiffs. Defendant's annoyance was aggravated, again understandably, by plaintiffs' addressing him as 'buddy boy.' It culminated May 24, 1972, when defendant advised plaintiffs that D.U.R.A. would withhold the $10,000 if legal proceedings were instituted. Later, having checked with D.U.R.A.'s attorney, defendant found the payment could not be so withheld. Defendant then caused the application form for the $10,000 payment to be mailed to the plaintiffs on August 2, 1972, but no retraction of the earlier statement was made. The plaintiffs, allegedly unaware that D.U.R.A. would pay upon completion of the application, failed to sign the application until the following March.

Defendant appeals urging that the court erred in not granting his motion to dismiss, in submitting the issues of liability and punitive damages to the jury, in erroneously instructing the jury on the issue of liability, in allowing certain irrelevant and prejudicial evidence to be introduced and, finally, in failing to exercise its supervisory power to set aside or reduce the jury verdict. Defendant raised proper objections during the trial to these alleged errors. As indicated, plaintiffs' cross-appeal the court's order denying them attorneys fees.

Defendant contends that a threat to withhold legally required payments if a person exercises his right of access to the courts does not constitute a violation of constitutional rights and thus the court erred in not granting his motion to dismiss this action. Access to the courts of the United States is a constitutional right guaranteed by the due process clauses of the fifth and fourteenth amendments. Harbolt v. Alldredge, 10 Cir., 464 F.2d 1243, 1244, cert. denied, 409 U.S. 1025, 93 S.Ct. 473, 34 L.Ed.2d 319; Evans v. Moseley, 10 Cir., 455 F.2d 1084, 1087. This right of access to the courts cannot be infringed upon or burdened. Adams v. Carlson, 7 Cir., 488 F.2d 619, 630. A public official's threats to a citizen to withhold monies due and owing, should legal proceedings on an independent matter be instituted, burdens or chills...