Tapalian v. Tusino

• Decision Date: 23 July 2004
• Docket Number: No. 02-1732.,02-1732.
• Parties: H. Charles TAPALIAN, Plaintiff-Appellee, v. James V. TUSINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

377 F.3d 1

H. Charles TAPALIAN, Plaintiff-Appellee, v. James V. TUSINO, Defendant-Appellant.

No. 02-1732.

United States Court of Appeals, First Circuit.

Heard December 2, 2003.

Decided July 23, 2004.

Appeal from the United States District Court for the District of Massachusetts, Patti B. Saris, J.

COPYRIGHT MATERIAL OMITTED

Patrick J. Costello, with whom James W. Simpson, Jr. and Merrick, Louison & Costello, LLP were on brief for appellant.

Lauren E. Jones, with whom Mark L. LaBollita, Jones Associates, John B. Reilly, and John Reilly & Associates were on brief for appellee.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

CYR, Senior Circuit Judge.

James V. Tusino, the Superintendent of the Department of Public Works (DPW) for the Town of Seekonk, Massachusetts ("Town"), appeals from a district court judgment directing him to pay plaintiff-appellee H. Charles Tapalian compensatory and punitive damages for violating Tapalian's equal protection rights in connection with a road reconstruction project. As we discern no error, we affirm the district court judgment.

I BACKGROUND

Our review of the record discloses that the jury rationally could have found the following facts: In 1989, the Town rejected Tapalian's application for a permit to construct a subdivision — to be known as "Pembroke Estates" — because Davis Street, the lone access road to the subdivision, was too narrow. Tapalian brought suit against the Town in state court, and in 1994 the parties entered into an Agreement for Judgment ("Agreement") whereby Tapalian agreed as a precondition to the construction of Pembroke Estates that he would improve a portion of Davis Street at his own expense, by "scarifying" the existing road surface then resurfacing it with a double layer of oil-sealed "stone chip" to a paved width of twenty-two feet. The Agreement further prescribed that Tapalian's specifications must be approved by the Town's DPW director.

In 1995, Tusino was appointed the new DPW superintendent for the Town. In 1997, Tusino, who was unaware of the 1994 Agreement, caused Davis Street to be widened and resurfaced with "stone chip" at the Town's expense. Early in 1998, after Tusino had learned of the Agreement, Tapalian and Tusino met for the first time, at Davis Street, to discuss other Davis Street improvements (if any) which Tapalian would be required to make before Tapalian could commence construction of Pembroke Estates. Tusino informed Tapalian that, as a condition of his approval of the specifications, Tapalian was to set him up with "two women" who worked at a nightclub located in a building owned by Tapalian. Tapalian advised Tusino that he was not about to act as his "pimp."

At their next meeting, Tusino sought to impose upon Tapalian other more onerous conditions not explicitly contemplated under the 1994 Agreement. Although Tusino had not consulted with any engineering expert, he informed Tapalian that he interpreted the term "scarification" — contained in the Agreement — to require that Tapalian undertake a costly pulverization of the existing stone-chip surface which the Town had just installed within the previous year. Whereas in road-construction parlance scarification simply requires that grooves be etched into the old road surface to ensure adequate adhesion of the newly applied surfacing materials.

In addition, Tusino insisted that Tapalian straighten the curves in Davis Street, pave the entire street (as distinguished from the portion specified in the Agreement), and construct three-foot-deep, gravel-filled trenches on both sides of the resurfaced roadway, almost three times the depth prescribed by the "industry standard." Further, Tusino informed Tapalian that he wanted asphalt as the top coat, whereas the Agreement called for a less expensive stone-chip surface. Finally, Tusino insisted that Tapalian conduct unprecedented sieve tests on several gravel samples and that Tapalian use more expensive gravel. Tusino's assistant confided to Tapalian's contractor that Tusino was intent upon "deliberately busting [Tapalian's] balls."

In November 1998, Tapalian commenced a state court action for contempt against Tusino and the Town, which had superintended the Agreement, arguing that the imposition of the new conditions flagrantly violated the terms of the Agreement. The Town in turn commenced a lawsuit to enjoin Tapalian from cutting trees on the subdivision land until after he completed the specified updates to Davis Street.

On December 11, 1998, Tusino wrote to Tapalian, stating that he had issued an order on December 1 that all road construction projects in the Town were to cease for the winter. Yet, notwithstanding the purported promulgation of this unprecedented moratorium, on December 17 Tusino issued a permit to another contractor, Kevin Murphy, to begin work on a nearby road construction project at the "Middlemarch" subdivision. Moreover, none of the additional conditions imposed upon Tapalian were imposed upon Murphy.

In the spring of 2000, Tapalian decided to proceed. He hired a contractor to dismantle the surface of Davis Street and install a new surface, as Tusino had insisted. Tusino then superimposed a host of additional, costly conditions. For instance he demanded that the road be sprayed with calcium chloride, a procedure Tapalian's contractor deemed not only unprecedented but unnecessary. Finally, in the course of these discussions, Tusino informed Tapalian's contractor that he also expected to be provided with "a forty-foot boat and two girls."

Meanwhile, in November 2000, Tapalian and the Town settled the pending contempt action brought by Tapalian, as well as the Town's claim for injunctive relief, and the parties agreed to the appointment of an independent engineer to determine whether the final roadwork met the terms of their 1994 Agreement. Thus, Tusino was relieved of any oversight authority relating to the Davis Street project.

Soon after an independent engineer certified in 2000 that Tapalian was in compliance, Tapalian commenced the instant action in federal district court against the Town and Tusino, alleging that Tusino's actions violated the Equal Protection Clause, see 42 U.S.C. § 1983, and demanding both compensatory and punitive damages. In due course, Tusino counterclaimed for defamation and infliction of emotional distress. After determining that the November 2000 settlement was res judicata, the district court dismissed the Tapalian claims against the Town. However, the district court denied the motion for summary judgment filed by Tusino, in his individual capacity, noting that Tusino had adduced no evidence that he was in privity with the Town in relation to the November 2000 settlement. Tapalian v. Town of Seekonk, 188 F.Supp.2d 136, 140-41 (D.Mass.2002). Following an eleven-day trial, the jury found that Tusino had violated Tapalian's equal protection rights, then awarded Tapalian $58,843 in compensatory damages and $150,000 in punitive damages. Finally, the jury found for Tapalian on the two counterclaims brought by Tusino. Tusino now appeals from the judgment entered upon the jury verdict.

II DISCUSSION

A. The Sufficiency of the Evidence

First, Tusino contends that he is entitled to judgment, as a matter of law, because Tapalian failed to adduce sufficient evidence to establish all elements of his equal protection claim. Denials of motions for judgment as a matter of law are reviewed de novo; and after viewing all the evidence and reasonable inferences therefrom (as well as credibility determinations) in the light most favorable to the nonmoving party, we will reverse the district court "`only if the facts and inferences point so strongly and overwhelmingly in favor of the movant that a reasonable jury could not have reached a verdict against that party.'" Santos v. Sunrise Med., Inc., 351 F.3d 587, 590 (1st Cir.2003) (citation omitted).

The Equal Protection Clause contemplates that similarly situated persons are to receive substantially similar treatment from their government. See Barrington Cove Ltd. P'ship v. R.I. Hous. and Mortgage Fin. Corp., 246 F.3d 1, 7 (1st Cir.2001). Accordingly, in order to establish his claim Tapalian had to adduce sufficient evidence from which a rational jury reasonably could conclude that, "compared with others similarly situated, [he] was selectively treated ... based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Id. (emphasis added).

The Tapalian claim rests upon the latter prong, viz., an allegation of malice or bad faith. Normally, such a plaintiff must establish more than that the government official's actions were simply arbitrary or erroneous; instead, the plaintiff must establish that the defendant's actions constituted a "gross abuse of power." Baker v. Coxe, 230 F.3d 470, 474 (1st Cir.2000); see Rubinovitz v. Rogato, 60 F.3d 906, 912 (1st Cir.1995) (noting that "gross abuse of power" may obtain where official harbors personal hostility toward plaintiff, and undertakes a "malicious orchestrated campaign causing substantial harm"); see also Village of Willowbrook v. Olech, 528 U.S. 562, 566, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (Breyer, J., concurring) (noting that some otherwise "ordinary violations of city or state law" may become actionable under the equal protection clause provided the plaintiff proves "extra factor[s]," such as "vindictive action," "illegitimate animus" or "ill will"); Esmail v. Macrane, 53 F.3d 176, 179, 180 (7th Cir.1995) (finding viable equal protection claim based upon (i) mayor's "orchestrated campaign of official harassment directed against [plaintiff] out of sheer malice" and (ii) "spiteful effort to `get' [plaintiff] for reasons wholly unrelated to any legitimate state objective").

1. The "Similarly Situated" Standard

The...